REMEDIAL LAW

EVIDENCE
PROOF vs. EVIDENCE
GENERAL PRINCIPLES
Proof Evidence
CONCEPT OF EVIDENCE The result or effect of The medium or means by
evidence (Jones on which a fact is proved or
Evidence is the means, sanctioned by the Rules of Court, evidence, Volume 1, Fourth disproved.
of ascertaining in a judicial proceeding the truth Edition, 4, p.5). Bare
respecting a matter of fact (Sec. 1, Rule 128). allegations
unsubstantiated by
NOTE: Evidence is only the means of ascertaining the evidence, are not
truth. The truth would depend upon the evidence equivalent to proof
admitted in Court in accordance with the rules. (Domingo v. Robles, G.R. No.
153743, March 18, 2005).
SCOPE OF THE RULES ON EVIDENCE
FACTUM PROBANS vs. FACTUM PROBANDUM
Applicability of the Rules on Evidence
Factum Probandum Factum Probans
The rules of evidence, being part of the Rules of Court, The fact or proposition to The facts or material
apply only to judicial proceedings (Sec. 1, Rule 128). be established evidencing the fact or
proposition to be
NOTE: The Rules of Court shall not apply to: (NICOLE) established.
1. Naturalization Proceedings; The fact to be proved, the The probative or
2. Insolvency Proceedings; fact which is in issue and evidentiary fact tending to
3. Cadastral Proceedings; to which the evidence is prove the fact in issue.
4. Other cases as may be provided by law; directed.
5. Land Registration cases; and Ultimate Facts Intermediate or
6. Election cases evidentiary facts
Hypothetical Existent
Except by analogy or in a suppletory character and
whenever practicable and convenient.(Sec. 4, Rule 1). Illustration: If P claims to have been injured by the
negligence of D who denies having been negligent, the
Principle of Uniformity negligence is the fact to be established. It is the factum
probandum. The evidence offered by P constitutes the
As a general policy, the rules of evidence shall be same in material to prove the liability of D. The totality of the
all courts and in all trials and hearing (Sec. 2, Rule 128). evidence to prove the liability is the factum probans
(Riano, 2013).
EVIDENCE IN CIVIL CASES
vs. EVIDENCE IN CRIMINAL CASE ADMISSIBILITY OF EVIDENCE

Evidence in Civil Case Evidence in Criminal REQUISITES FOR ADMISSIBILITY OF EVIDENCE

Case
The party having the The guilt of the accused 1. The evidence is relevant to the issue; and
burden of proof must has to be proven beyond
prove his claim by a reasonable doubt NOTE: It is relevant if “it has such a relation to the
preponderance of (Sec. 1, Rule 133). fact in issue as to induce belief in its existence or
evidence non-existence” (Sec. 4, Rule 128).
(Sec. 1, Rule 133).
An offer of compromise is The same may be received 2. The evidence is not excluded by the rules
not an admission of any in evidence as an (competent).
liability, and not admission of guilt except
admissible in evidence those involving quasi- NOTE: Competency is determined by the prevailing
against the offeror offenses (criminal exclusionary rules of evidence.
(Sec. 27, Rule 130). negligence) or those
allowed by law to be Relevancy is an affair of logic, human experience
compromised and common sense while competency is determined
(Sec. 27, Rule 130). by law.
The concept of The accused enjoys the
presumption of innocence constitutional Illegally obtained evidence cannot be admitted for
does not apply and presumption of innocence the reason that they are the “fruit of the poisonous
generally there is no (Sec. 14, Art. III, 1987 tree”. Examples of illegally obtained evidence are
presumption for or against Constitution). evidence obtained without a valid search warrant
a party exept in certain (this is however subject to exceptions) (See Section
cases provided by law. 3 (2), Article III of the 1987 Constitution) (Bar 2010)

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NOTE: This section could also be the answer to the Thus, a party who first introduces either irrelevant or
question on the “two kinds of objection” that is the incompetent evidence into the trial cannot complain of
objection that the evidence is not relevant to the the subsequent admission of similar evidence from the
issue and secondly that is excluded by the rules adverse party relating to the subject matter
(Rule 128, Sec. 3) (Commonwealth v. Alexander, K., 5 S.W. rd104, 105
(1999), quoting Dunaway v. Commonwealth, 239 Ky. 166,
RELEVANCE OF EVIDENCE 39 S.W. 2d 242, 243 (1931); Smith vs. Commonwealth, Ky.,
AND COLLATERAL MATTERS 904 S.W. 2d 220, 222 (1995)). Conversely, the doctrine
should not be invoked where evidence was properly
Relevancy of Evidence admitted.

Evidence must have such a relation to the fact in issue as DIRECT AND CIRCUMSTANTIAL EVIDENCE
to induce belief in its existence or non-existence (Sec. 4,
Rule 128). Direct Evidence – proves a fact without the need to make
an inference from another fact (Riano, 2013).
Collateral matters
Circumstantial Evidence or indirect evidence – that
GR: Evidence on collateral matters is not allowed. evidence which indirectly proves a fact in issue through
an inference which the fact finder draws from the
XPN: Evidence on collateral matters shall be allowed evidence established (People v. Matito, G.R. No. 144405,
when it tends in any reasonable degree to establish the February 24, 2004).
probability or improbability of fact in issue.
CUMULATIVE EVIDENCE AND
Illustration: Although evidence of character is generally CORROBORATIVE EVIDENCE
inadmissible (Sec. 51, Rule 130), the accused may prove
his good moral character which is pertinent to the moral Cumulative evidence refers to evidence of the same kind
trait involved in the offense charged (Sec. 51(a)(1), Rule and character as that already given and that tends to
130). prove the same proposition. (Wyne v. Newman, 75 Va.,
811, 817)
MULTIPLE ADMISSIBILITY
Corroborative evidence is one that is supplementary to
Where the evidence is relevant and competent for two or that already given tending to strengthen or confirm it. It
more purposes, such evidence should be admitted for is additional evidence of a different character to the
any or all purposes for which it is offered provided it same point (Edwards v. Edwards, Tenn. App., 501 S.W. 2d
satisfies all the requirements of law for its admissibility 283. 289).
therefor (Regalado, 2008).
POSITIVE AND NEGATIVE EVIDENCE
Illustration: Thus, depending upon circumstances, the
declaration of a dying person may be admissible for two Positive Evidence - when the witness affirms in the stand
or more purposes. It may be offered as a dying that a certain state of facts does not exist or that a certain
declaration under Sec. 37 of Rule 130, as part of res event happened.
gestae under Sec. 42 of Rule 130. The statement by a bus
driver immediately after the collision that he dozed off in Negative evidence – when the witness states that an
the wheel while driving may be admissible as an event did not occur or that the state of facts alleged to
admission under Sec. 26 of Rule 130 or as part of res exist does not actually exist (Riano, 2013).
gestae pursuant to Sec. 42 of Rule 130.
Greater probative value is given to evidence that is
CONDITIONAL ADMISSIBILITY positive in nature than that which is accorded to
evidence that is negative in character (Republic vs
Where the evidence at the time of its offer appears to be Bautista, G.R. No. 169801, September 11, 2007).
immaterial or irrelevant unless it is connected with the
other facts to be subsequently proved, such evidence NOTE: When a witness declares of his personal
may be received on condition that the other facts will be knowledge that a fact did not take place that is actually
proved thereafter, otherwise the evidence already given positive testimony since it is an affirmation of the truth
will be stricken out (Regalado, 2008). of a negative fact (Regalado, 2008).

CURATIVE ADMISSIBILITY Denial as negative evidence

It allows a party to introduce otherwise inadmissible A denial is negative evidence. It is considered by the
evidence to answer the opposing party’s previous Court to be a very weak form of defense and can never
introduction of inadmissible evidence if it would remove overcome an affirmative or positive testimony
any unfair prejudice caused by the admission of the particularly when the latter comes from the mouth of a
earlier inadmissible evidence (Adams v. Burlington N. credible witness (People v. Mendoza, G.R. No. 146693-94,
R.R. Co., 865 S.W. 2d 748, 751 (Mo. App. 1993)). July 31, 2003).

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COMPETENT AND CREDIBLE EVIDENCE Equipoise rule or equiponderance doctrine

Competent evidence is one that is not excluded by law in The Equipoise Doctrine is based on the principle that no
a particular case. If the test of relevance is logic and one shall be deprived of his life, liberty or property
common sense, the test of competence is the law or the without due process of law (Sec. 1, Art III, Constitution of
rules. Competence, in relation to evidence in general, thr Philippines.
refers to eligibility of an evidence to be received as such.
It refers to a situation where the evidence of the parties
ADMISSIBLE EVIDENCE AND CREDIBLE EVIDENCE is evenly balanced, or there is doubt on which side the
evidence preponderates (or weighs more heavily)
Evidence is admissible when it is relevant to the issue and (Rivera v. Court of Appeals January 23, 1998).
is not excluded by the law or rules (Sec. 3, Rule 128).
PRESUMPTIONS
NOTE: Admissible evidence is not necessarily credible
evidence. Admissibility does not guarantee credibility These are inferences of the existence or non-existence of
(Riano, 2013). a fact which courts are permitted to draw from the proof
of other facts (In the matter of the Intestate Estates of
Credibility refers to worthiness of belief, that quality Delgado and Rustia, G.R. No. 175733, January 27, 2006).
which renders a witness worthy of belief (Black’s Law
Dictionary, 5th Ed., p.330). NOTE: A presumption shifts the burden of going forward
with the evidence. It imposes on the party against whom
BURDEN OF PROOF it is directed the burden of going forward with evidence
AND BURDEN OF EVIDENCE to meet or rebut the presumption (Bautista, 2004, citing
Mueller and Kirkpatrick, §3.4.).
Burden of proof Burden of evidence
Burden of proof or “onus Burden of evidence is that Presumption vs. Inference
probandi” traditionally logical necessity which
refers to the obligation of a rests upon a party at any Presumption Inference
party to the litigation to particular time during the It is mandated by law and It is a factual conclusion
persuade the court that he trial to create a prima facie establishes a legal relation that can rationally be
is entitled to relief case in his favor or to between or among the drawn from other facts
overthrow one created facts. (Riano, 2013).
against him.
Duty of a party to present Duty of the party to go Is a deduction directed by It is a permissive
evidence to establish his forward with the evidence law deduction (Francisco,
claim or evidence by the to overthrow the prima 1996)
amount of evidence facie evidence against him
required by law, which is (Bautista v. Sarmiento, G.R. Effect of presumption
preponderance of No. L-45137, September,
evidence in civil cases 23, 1985). A party in whose favor the legal presumption exists may
(Supreme Transliner, Inc. v. rely on and invoke such legal presumption to establish a
CA, G.R. No. 125356, fact in issue. One need not introduce evidence to prove
November 21, 2001). the fact for a presumption is prima facie proof of the fact
Does not shift and remains The burden of going presumed (Diesel Construction, Inc v. UPSI Property
throughout the entire case forward with the evidence Holdings, Inc., G.R. No. 154937, March 24, 2008).
exactly where the may shift from party to
pleadings originally placed party as the exigencies of Presumption of law vs. Presumption of fact
it. the trial require
(Chamberlayne, Sec. 203, Presumption of Law Presumption of Fact
108, 169). (Praesumptiones Juris) (Praesumptiones
Generally determined by Generally determined by Hominis)
the pleadings filed by the the developments of the It is a deduction which the It is a deduction which
party. trial, or by the provisions law expressly directs to be reason draws from the
of substantive law or made from particular facts. facts proved without an
procedural rules which express direction from
may relieve the party from law to that effect.
presenting evidence on the
facts alleged. A certain inference must be Discretion is vested in
made whenever the facts the tribunal as to
Test for determining where the burden of proof lies appear which furnish the drawing the inference.
basis of the inference.
Ask which party to an action or suit will fail if he offers
no evidence competent to show the facts averred as the Reduced to fixed rules and Derived wholly and
basis for the relief he seeks to obtain. forms a part of the system directly from the
of jurisprudence circumstances of the

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particular case by means Basis of Estoppel in pais

of the common
experience of mankind It is founded upon principles of morality and fair dealing
and is, intended to promote the ends of justice. It always
Need not be pleaded or Has to be pleaded and presupposes error on one side and fault or fraud upon
proved if the facts on which proved the other and some defect of which it would be equitable
they are based are duly for the party against whom the doctrine is asserted to
averred and established take advantage (19 Am. Jur. 640-642; Francisco, 1996).

Kinds of presumptions of law Effect of estoppel in pais

1. Conclusive presumptions (presumptions juris et de The effect of an estoppel in pais, is to prevent the
jure); assertion of what would otherwise be an unequivocal
2. Disputable presumptions (presumptions juris right or to preclude what would otherwise be a good
tantum) (Rule 131; Regalado, 2008) defense. Such estoppel operates always as a shield, never
as a sword.
CONCLUSIVE PRESUMPTIONS
Requisites of estoppel in pais
They are those which are irrebuttable upon the
presentation of the evidence and any evidence tending to 1. Conduct amounting to false representation or
rebut the presumption is not admissible. This concealment of material facts; or at least calculated
presumption is in reality a rule of substantive law (Riano, to convey the impression that the facts are
2009). otherwise than, and inconsistent with, those which
the party subsequently attempts to assert;
Classes of conclusive presumptions 2. Intent, or at least, expectation, that this conduct
shall be acted upon by, or at least influence, the
1. Estoppel in pais (Equitable Estoppel) – Whenever a other party; and
party has, by his own declaration, act or omission, 3. Knowledge, actual or constructive, of the real facts
intentionally and deliberately led another to believe (Riano, 2013).
a particular thing to be true, and to act upon such
belief, he cannot, in any litigation arising out of such Requisites for estoppel
declaration, act or omission, be permitted to falsify
it (Sec. 2, (par. a), Rule 131); 1. Lack of knowledge and of the means of knowledge
2. Estoppel by deed – A party to a property deed is of the truth as to the facts in question;
precluded from asserting, as against another party 2. Reliance, in good faith, upon the conduct or
to the deed, any right or title in derogation of the statements of the party to be estopped; and
deed, or from denying the truth of any material fact 3. Action or inaction based thereon of such character
asserted in the deed e.g. The tenant is not permitted as to change the position or status of the party
to deny the title of his landlord at the time of the claiming the estoppel, to his injury, detriment or
commencement of the relation of landlord and prejudice (Kalalo v. Luz, G.R. No. L-27782, July 31,
tenant between them (Sec. 2 (par. b), Rule 131). 1970).

NOTE: Estoppel may attach even though the Other forms of estoppel akin to estoppel in pais:
landlord does not have title at the commencement
of the relations. It may inure in favor of the 1. Estoppel by silence - where a person, who by force of
successor (Golden Horizon Realty Corporation vs. St circumstances is under a duty to another to speak,
Chuan, G.R. No. 145416, September 21, 2001, citing refrains from doing so and thereby leads the other
Geminiano vs. CA, July 24, 1996). If the title asserted to believe in the existence of a state of facts in
is one that is alleged to have been acquired reliance on which he acts to his prejudice. Silence
subsequent to the commencement of that relation, may support an estoppel whether the failure to
the presumption will not apply (Santos vs. NSO, G.R. speak is intentional or negligent (Pasion vs.
No. 171129, April 6, 2011). Melegrito, G.R. No. 166558, March 28, 2007);
2. Estoppel by laches – is unreasonable delay to seek or
Distinguish estoppel from waiver to enfore a right at a proper time. A neglect to do
something which one should do or to seek to
A waiver is a voluntary and intentional abandonment or enforce a right at a proper time;
relinquishment of a known right. It must be supported 3. Promissory estoppel- may arise from the making of a
by an agreement founded upon a valid consideratipn. An promise, even though without consideration, if it
equitable estoppel may arise however, in the absence of was intended that the promise should be relied
any intention on the part of the person estopped to upon and in fact relied upon, and if a refusal to
relinquish or change any existing right, and it need not enforce it would be virtually to sanction the
be supported by any consideration, agreement, or legal perpetration of fraud or would result in other
obligation (Francisco, 1996). injustice;
4. Estoppel on question of jurisdiction – A party is
barred from assailing the legality of an order issued

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at his own motion since a person cannot be allowed 5. Evidence willfully suppressed would be adverse if
to take advantage of his own wrong when such produced;
would work substantial injury to the other party (21
C.J. 1152, Francisco, 1996). Requisites:
a. The evidence is material;
Estoppel by deed b. The party had the opportunity to produce it;
and
The doctrine is founded in public convenience and c. The evidence is available only to the said party.
policy, because it tends to encourage honesty and good
faith between landlord and tenant (32 Am. Jur. 109; The presumption will not be applicable when:
Francisco, 1996). a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is merely
Requisites of estoppel by deed corroborative or cumulative;
c. Evidence is at the disposal of both parties; and
1. The recitals should be clear and unambiguous; d. Suppression is by virtue of an exercise of
2. There should be distinct and precise admission of privilege.
facts;
3. The deed must be delivered; and NOTE: Failure of the prosecution to present a
4. That it must be a valid instrument (Francisco, 1996). certain witness and to proffer a plausible
explanation does not amount to willful suppression
DISPUTABLE PRESUMPTIONS of evidence since the prosecutor has the
discretion/prerogative to determine the witnesses
Those which are satisfactory if uncontradicted, but may he is going to present (People v. Jalbuena, G.R. No.
be contradicted and overcome by other evidence (Sec. 3, 171163, July 4, 2007).
Rule 131).
6. Money paid by one to another was due to the latter;
Disputable presumptions under Section 3 of Rule 7. Thing delivered by one to another belonged to the
131 latter;
8. Obligation delivered up to the debtor has been paid;
1. Lack of knowledge and of the means of knowledge 9. Prior rents or installments had been paid when a
of the truth as to the facts in question; receipt for the later ones is produced;
10. A person found in possession of a thing taken in the
NOTE: It applies to both civil and criminal cases. doing of a recent wrongful act is the taker and doer
Presumption of innocence of the accused of the whole act; otherwise, that things which a
accompanies him until the rendition of judgment person possesses or exercises acts of ownership
and disappears after conviction, such that upon over, are owned by him;
appeal, the appellate court will then presume the
guilt of the accused. The prosecution’s case must NOTE: In order to raise the presumption, the
rise and fall on its own merits and cannot draw following must be proved:
strength from the weakness of the defense (People 1. That a crime was committed;
vs. Mingming, G.R. No. 174195, Dec. 10, 2008). 2. That it was committed recently;
3. That the stolen property was found in the
2. Unlawful act is done with an unlawful intent; possession of the defendant; and that the
3. Person intends the ordinary consequences of his defendant is unable to explain his possession
voluntary act; satisfactorily (U.S. v. Espia 16, G.R. No. L-5813,
4. Person takes ordinary care of his concerns; August 27, 1910).

NOTE: 11. That a person in possession of an order for the

payment of the money, or the delivery of anything,
GR: All people are sane and normal and moved by has paid the money or delivered the thing
substantially the same motives. When of age and accordingly;
sane, they must take care of themselves. Courts 12. Person acting in public office was regularly
operate not because one person has been defeated appointed or elected to it;
or overcome by another but because that person has Ratio: It would cause great inconvenience if in the
been defeated or overcome illegally. There must be first instance strict proof were required of
a violation of the law (Vales v. Villa, G.R. No. 10028, appointment or election to office in all cases where
December 16, 1916). it might be collaterally in issue.

XPN: When one of the parties is unable to read or if NOTE: However, the presumption of a regular
the contract is in a language not understood by him, appointment does not apply to a public officer
and mistake or fraud is alleged, the person enforcing seeking to recover salary attached to the office, or
the contract must show that the terms thereof have the benefits of a pension system (31 C.J.S, 787-788)
been fully explained to the former (Art. 1332, NCC).
13. Official duty has been regularly performed;

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 EVIDENCE
NOTE: All things are presumed to have been done a. Absence of 7 years – It being unknown whether
regularly and with due formality until the contrary or not, the absentee still lives, he shall be
is proved (Omnia praesumuntur rite et solemniter presumed dead for all purposes, except for
esse acta donec probetur in contrarium). This those of succession;
presumption extends to persons who have been b. Absence of 10 years – The absentee shall be
appointed pursuant to a local or special statute to considered dead for the purpose of opening his
act in quasi-public or quasi-official capacities and to succession only after an absence of 10 years;
professionals like lawyers and surgeons. and if he disappeared after the age of 75,
absence of only 5 years is sufficient;
GR: Presumption applies to both civil as well as c. The following shall be considered dead for all
criminal cases. purposes including the division of estate among
the heirs:
XPNs: i. Person on board a vessel lost during a sea
a. Petition for writ of amparo – presumption may voyage, or an aircraft which is missing,
not be invoked by the respondent public officer who has not been heard of for 4 years
or employee (Rule on the Writ of Amparo, A.M. since the loss of the vessel or aircraft;
No. 17-9-12-SC); ii. Member of the armed forces who has
b. The presumption does not apply during in- taken part in armed hostilities, and has
custody investigation (People vs. Camat, G.R. No. been missing for 4 years;
112262, April 2, 1996); iii. Person who has been in danger of death
c. When the official conduct in question is under other circumstances and whose
irregular on its face (People v. Obmiranis, GR. existence has not been known for 4 years;
No. 181492, December 16, 2008). iv. If a married person has been absent for 4
consecutive years, the spouse present may
14. A court or judge acting as such, whether in the contract a subsequent marriage if he or
Philippines or elsewhere, was acting in the lawful she has well-founded belief that the absent
exercise of jurisdiction; spouse is already dead; 2 years in case of
disappearance where there is danger of
NOTE: Lawful exercise of jurisdiction is presumed death under the circumstances
in all cases, be it superior or inferior courts, whether hereinabove provided. Before marrying
in the Philippines or elsewhere, unless the record again, the spouse present must institute a
itself shows that jurisdiction has not been acquired summary proceeding as provided in the
or the record itself shows the absence of Family Code and in the rules for
jurisdiction, in which case jurisdiction to render a declaration of presumptive death of the
judgment may not be presumed. absentee, without prejudice to the effect of
re-appearance of the absent spouse.
15. All the matters within an issue raised in a case were
laid before the court and passed upon by it; 25. Acquiescence resulted from a belief that the thing
16. All matters within an issue raised in a dispute acquiesced in was conformable to the law or fact;
submitted for arbitration were laid before 26. Things have happened according to the ordinary
arbitrators and passed upon by them; course of nature and ordinary habits of life;
17. Private transactions have been fair and regular; 27. Persons acting as co-partners have entered into a
18. Ordinary course of business has been followed; contract of co-partnership;
19. There was a sufficient consideration for a contract; 28. A man and woman deporting themselves as
20. Negotiable instrument was given or indorsed for a husband and wife have entered into a lawful
sufficient consideration; contract of marriage;
21. An endorsement of negotiable instrument was made 29. Property acquired by a man and a woman who are
before the instrument was overdue and at the place capacitated to marry each other and who live
where the instrument is dated; exclusively with each other as husband and wife
without the benefit of marriage or under void
NOTE: Except where an endorsement bears date marriage, has been obtained by their joint efforts,
after the maturity of the instrument, every work or industry;
negotiation is deemed prima facie to have been 30. In cases of cohabitation by a man and a woman who
effected before the instrument was overdue (Sec. 45, are not capacitated to marry each other and who
Act. No. 2031). have acquired properly through their actual joint
contribution of money, property or industry, such
22. A writing is truly dated; contributions and their corresponding shares
23. Letter duly directed and mailed was received in the including joint deposits of money and evidences of
regular course of the mail; credit are equal;
31. If the marriage is terminated and the mother
NOTE: For this presumption to arise, it must be contracted another marriage within 300 days after
proved that the letter was properly addressed with such termination of the former marriage, these rules
postage pre-paid and that it was actually mailed. shall govern in the absence of proof to the contrary;
32. A thing once proved to exist continues as long as is
24. Presumption of Death; usual with things of that nature;

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33. The law has been obeyed; QUANTUM OF EVIDENCE
34. A printed or published book, purporting to be (WEIGHT AND SUFFICIENCY OF EVIDENCE)
printed or published by public authority, was so RULE 133
printed or published;
35. A printed or published book, purporting to contain Weight of evidence
reports of cases adjudged in tribunals of the country
where the book is published, contains correct It is the probative value given by the court to particular
reports of such cases; evidence admitted to prove a fact in issue.
36. A trustee or other person whose duty it was to
convey real property to a particular person has Hierarchy of quantum of evidence
actually conveyed it to him when such presumption
is necessary to perfect the title of such person or his
successor in interest;
37. Except for purposes of succession, when 2 persons
perish in the same calamity, and it is not shown who
died first, and there are no particular circumstances
from which it can be inferred, the survivorship is
determined from the probabilities resulting from
the strength and age of the sexes, according to the
following rules:

38. 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. 3, Rule 131).

LIBERAL CONSTRUCTION
OF THE RULES OF EVIDENCE

The rules of evidence must be liberally construed (Sec. 6,

Rule 1). The Rules of Procedure are mere tools intended
to facilitate rather than to frustrate the attainment of
justice. A strict and rigid application of the rules must
always be avoided if it would subvert their primary
objective of enhancing substantial justice (Alcantara v.
PCIB, G.R. No. 151349, October 20, 2010). Procedural
rules must be liberally interpreted and applied so as not
to frustrate substantial justice (Quiambao v. Court of NOTE: Evidence, to be worthy of credit, must not only
Appeals, G.R. No. 128305, March 28, 2005 ). However, to proceed from a credible source but must also be credible
justify relaxation of the rules, a satisfactory explanation in itself. It must be natural, reasonable and probable as
and a subsequent fulfillment of the requirements have to make it easy to believe (People v. Peruelo, G.R. No.
always been required (Barcenas v. Tomas,G.R. No. 50631, June 29, 1981).
150321, March 31, 2005).
Degree of evidence required to disprove the prima
facie case established by the party having the burden
of proof

A prima facie case need not be countered by a

preponderance of evidence nor by evidence of greater
weight. Defendant's evidence which equalizes the weight
of plaintiff's evidence or puts the case in equipoise is
sufficient. As a result, plaintiff will have to go forward
with the proof. Should it happen that at the trial the
weight of evidence is equally balanced or at equilibrium
and presumptions operate against plaintiff who has
burden of proof, he cannot prevail (People v. Santiago,
G.R. Nos. 137542-43, January 20, 2004).

Guidelines in the assessment of credibility of a

witness

1. A witness who testified in clear, positive and

convincing manner and remained consistent in

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cross-examination is a credible witness (People v. Falsus in uno, falsus in omnibus (in relation to
Comanda, G.R. No. 175880, July 6, 2007); and credibility of witness)
2. Findings of fact and assessment of credibility of a
witness are matters best left to the trial court that Literally, falsus in uno, falsus in omnibus means “false in
had the front-line opportunity to personally one thing, false in everything” (Dawson v. Bertolinin, 70
evaluate the demeanor, conduct, and behavior of the R.I. 325, 38 A.2d 765, 765). The doctrine means that if the
witness while testifying (Sps. Paragas v. Heirs of testimony of a witness on a material issue is willfully
Balacano, G.R. No. 168220, August 31, 2005). false and given with an intention to deceive, the jury may
disregard all the witness’ testimonies (Hargrave v.
Trial court’s findings as to the credibility of Stockloss, 127 N.J.L. 262, 21 A.2d 820, 823). It is
witnesses, not disturbed on appeal particularly applied to the testimony of a witness who
may be considered unworthy of belief as to all parts of
The trial court’s findings of fact will not be disturbed on his testimony if he is shown to have sworn falsely in one
appeal, unless there is a clear showing that it plainly detail.
overlooked matters of substance which, if considered,
might affect the results of the review. The credibility of The principle of falsus in uno, falsus in omnibus is not
witnesses is best determined by the trial judge, who has strictly applied in this jurisdiction. It deals only with the
the direct opportunity to observe and evaluate their weight of the evidence and is not a positive rule of law.
demeanor on the witness stand (People v. Pacuancuan, The rule is not an inflexible one of universal application.
G.R. No. 144589, June 16, 2003). Modern trend in jurisprudence favors more flexibility
when the testimony of a witness may be partly believed
Uncorroborated testimony of an accused who turned and partly disbelieved depending on the corroborative
into a State witness sufficient to convict his co- evidence presented at the trial (People v. Negrosa, G.R.
accused Nos. 142856-57, August 25, 2003).

It may suffice to convict his co-accused if it is given When the maxim falsus in uno, falsus in omnibus
unhesitatingly and in a straightforward manner and is applies
full of details which by their nature could not have been
the result of deliberate afterthought, otherwise, it needs 1. That the false testimony is as to one or more
corroboration, the presence or lack of which may material points; and
ultimately decide the case of the prosecution and the fate 2. That there should be conscious and deliberate
of the accused (People v. Sunga, G.R. No. 126029, March intention to falsity (People v. Pacapac, G.R. No.
27, 2003). 90623, September 7, 1995).

Sufficiency of evidence Extrajudicial confession NOT sufficient ground for

conviction
In determining the sufficiency of evidence, what matters
is not the number of witnesses but the credibility and the An extrajudicial confession made by an accused, shall not
nature and quality of their testimonies. The testimony of be sufficient ground for conviction, unless corroborated
a lone witness is sufficient to support a conviction if by evidence of corpus delicti (Sec. 3, Rule 133).
found positive and credible (Ceniza-Manantan v. People,
G.R. No. 156248, August 28, 2007). When circumstantial evidence is sufficient for
conviction
Partial credibility of a witness
Circumstantial evidence is sufficient for conviction if:
The testimony of a witness may be believed in part and 1. There is more than one circumstances;
disbelieved in another part, depending on the 2. The facts from which the inferences are derived are
probabilities and improbabilities of the case (People v. proven; and
Tan, G.R. No. 176526, August 8, 2007). 3. The combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt
NOTE: If the testimony of the witness on a material issue (Sec. 4, Rule 133).
is willfully false and given with an intention to deceive,
the court may disregard all the witness’ testimony. The corollary rule is that the circumstances proven must
Falsus in uno, falsus in omnibus(Riano, 2013). This is not a constitute an unbroken chain which leads to one fair and
mandatory rule of evidence but is applied by the courts reasonable conclusion pointing to the accused, to the
in its discretion. It deals only with the weight of evidence exclusion of all others, as the guilty person, i.e. the
and not a positive rule of law. The witnesses’ false or circumstances proven must be consistent with the
exaggerated statements on other matters shall not hypothesis that the accused is guilty and at the same
preclude the acceptance of such evidence as is relieved time inconsistent with the hypothesis that he is innocent
from any sign of falsehood. The court may accept and and with any other rational hypothesis except of that
reject portions of the witness’ testimony depending on guilt (Trinidad v. People, G.R. No. 192241, June 13, 2012).
the inherent credibility thereof (Regalado, 2008).

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Alibi 1. Witness’ opportunity to view the criminal at the
time of the crime;
It is a defense where an accused claims that he was 2. Witness’ degree of attention at that time;
somewhere else at the time of the commission of the 3. Accuracy of any prior description given by the
offense. It is one of the weakest defenses an accused may witness;
avail because of the facility with which it can be 4. Level of certainty demonstrated by the witness at
fabricated, just like a mere denial (People v. Esperanza, the identification;
G.R. Nos. 139217-24, June 27, 2003). When this is the 5. Length of time between the crime and the
defense of the accused, it must be established by identification; and
positive, clear and satisfactory evidence. 6. Suggestiveness of the identification procedure
(People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08,
NOTE: A categorical and positive identification of an October 6, 1995).
accused, without any showing of ill-motive on the part of
the eyewitness testifying on the matter, prevails over an Corpus delicti
alibi (People v. Gingos and Margote, G.R. No. 176632,
September 11, 2007). For the defense of alibi to prosper, It is the actual commission by someone of the particular
the accused must show that: crime charged. It refers to the fact of the commission of
1. He was somewhere else; and the crime, not to the physical body of the deceased or to
2. It was physically impossible for him to be at the the ashes of a burned building. The corpus delicti may be
scene of the crime at the time of its commission proven by the credible testimony of a sole witness, not
(People v. Gerones, et al., G.R. No. L-6595, October 29, necessarily by physical evidence (Rimorin v. People, G.R.
1954). No. 146481, April 30, 2003).

Out-of-court identification Elements of corpus delicti

It is a means of identifying a suspect of a crime and is 1. Proof of the occurrence of a certain event; and
done thru: 2. A person’s criminal responsibility for the act (People
1. Show-ups: where the suspect alone is brought face v. Corpuz, G.R. No. 148919, December 17, 2002).
to face with the witness for identification;
NOTE: The identity of the accused is not a necessary
NOTE: Eyewitness identification is often decisive of element of the corpus delicti.
the conviction or acquittal of an accused.
Identification of an accused through mug shots is Plea of guilty in open court sufficient without proof
one of the established procedures in pinning down of corpus delicti
criminals. However, to avoid charges of
impermissible suggestion, there should be nothing A plea of guilty at the arraignment in open court, which
in the photograph that would focus attention on a is a confession of guilt by the defendant, is sufficient to
single person. (People v. Villena, G.R. No. 140066, support a conviction without necessity of proof aliunde
October 14, 2002) of corpus delicti. In contrast, an extrajudicial confession
made by defendant does not warrant a conviction unless
2. Mug shots: where photographs are shown to the corroborated by independent evidence of corpus delicti
witness to identify the suspect; or (Francisco, 1996).
3. Line-ups: where a witness identifies the suspect
from a group of persons lined up for the purpose Q: Jose Mariposa was charged with violation of Sec. 4,
(People v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, Art. 2 of the Dangerous Drugs Act of 1972. He was
October 6, 1995). apprehended thru a buy-bust operation. During trial
the prosecution failed to produce the marijuana
NOTE: A police line-up is merely a part of the sticks that Mariposa sold during the entrapment
investigation process by police investigators to operation. Is there a need to produce the marijuana
ascertain the identity of offenders or confirm their sticks in order to convict the accused?
identification by a witness to the crime. Police
officers are not obliged to assemble a police line-up A: Yes. The elements necessary for a charge of illegal sale
as a condition sine qua non to prove the identity of of marijuana are: (1) the identity of the buyer and the
an offender. If on the basis of the evidence on hand, seller, the object, and consideration; and (2) the delivery
police officers are certain of the identity of the of the thing sold and the payment therefore. It is
offender, they need not require any police line-up indispensable that the identity of the marijuana which
anymore (Tapdasan, Jr. v. People, G.R. No. 141344, constitutes the corpus delicti must be established before
November 21, 2002). the court. During the trial, the sticks of marijuana were
never presented as evidence to prove that appellant
Admissibility of out-of-court identification indeed sold the same during the entrapment operation.
It is an entrenched rule in our jurisprudence that
It is admissible and reliable when it satisfies the “totality indispensable in every prosecution for illegal sale of
of circumstances” test. Under the “totality of marijuana, a prohibited drug, is the submission of proof
circumstances” test, the following factors are considered: that the sale for the illicit drug took place between the
poseur-buyer and the seller thereof, and the

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 EVIDENCE
presentation further of the marijuana, the corpus delicti, NOTE: In every criminal prosecution, the prosecution
as evidence in court (People v. Rigodon, G.R. No. 111888, must prove two things:
November 8, 1994). 1. The commission of the crime; and
2. The identification of the accused as the perpetrator
Res ipsa loquitur of the crime. What is needed is positive
identification made with moral certainty as to the
It literally means the thing speaks for itself. This doctrine person of the offender (People v. Maguing, G.R. No.
provides that the fact of the occurrence of an injury, 144090, June 26, 2003).
taken with the surrounding circumstances, may permit
an inference or raise a presumption of negligence, or PREPONDERANCE OF EVIDENCE
make out a plaintiff's prima facie case, and present a
question of fact for defendant to meet with an It is the weight, credit, and value of the aggregate
explanation. Where the thing which caused the injury evidence on either side and is usually considered to be
complained of is shown to be under the management of synonymous with the term “greater weight of the
the defendant or his servants and the accident is such as evidence” or “greater weight of the credible evidence”. It
in ordinary course of things does not happen if those is a phrase which, in the last analysis, means probability
who have its management or control use proper care, it of the truth, evidence which is more convincing to the
affords reasonable evidence, in the absence of court as worthy of belief than that which is offered in
participation by the defendant, that the accident arose opposition thereto (Philippine Commercial International
from or was caused by the defendant's want of care Bank v. Balmaceda, G.R. No. 158143, September 21, 2011).
(Ramos v. CA, G.R. No. 124354, December 29, 1999).
NOTE: However, even if the evidence adduced by the
Application of the doctrine does not dispense with plaintiff appears to be stronger than that presented by
the requirement of proof of negligence the defendant, a judgment cannot be entered in the
plaintiff’s favor if his evidence still does not suffice to
It is considered merely as evidentiary or in the nature of sustain his cause of action (Ibid.).
procedural rule. It is simply in the process of such proof,
permitting the plaintiff to present enough of the Matters that the court may consider in determining
attending circumstances to invoke the doctrine, creating whether or not there is preponderance of evidence
an inference or presumption of negligence and thereby
place on the defendant the burden of going forward with 1. All the facts and circumstances of the case;
the proof to the contrary (Ramos, et al. v. CA, G.R. No. 2. The witnesses' manner of testifying, their
124354, December 29, 1999). intelligence, their means and opportunity of
knowing the facts to which they are testifying, the
PROOF BEYOND REASONABLE DOUBT nature of the facts to which they testify, the
probability or improbability of their testimony;
It is that state of the case which, after the entire 3. The witnesses’ interest or want of interest, and also
comparison and consideration of all the evidence leaves their personal credibility so far as the same may
the mind of the judge in that condition that he cannot say legitimately appear upon the trial; and
that he feels an abiding conviction to a moral certainty of 4. The number of witnesses, though the
the truth of the charge (People v. Calma, G.R. No. 127126, preponderance is not necessarily with the greater
September 17, 1998). number (Sec. 1, Rule 133).

Proof beyond reasonable doubt does not mean such a NOTE: To persuade by the preponderance of evidence is
degree of proof as, excluding possibility of error, not to take the evidence quantitatively but qualitatively
produces absolute certainty. Moral certainty only is (Riano, 2013).
required, or that degree of proof which produces
conviction in an unprejudiced mind (Sec. 2, Rule 133). SUBSTANTIAL EVIDENCE

NOTE: Moral certainty is that degree of certainty which Substantial evidence applies to cases filed before the
will justify the trial judge in grounding on it his verdict. It administrative or quasi-judicial bodies and which
is a certainty that convinces and directs the requires that in order to establish a fact, the evidence
understanding and satisfies the reason and judgment of should constitute that amount of relevant evidence
those who are bound to act conscientiously upon it. which a reasonable mind might accept as adequate to
justify a conclusion (Sec. 5, Rule 133).
Identity of the accused must be proved beyond
reasonable doubt NOTE: In a petition for a writ of amparo, the parties shall
establish their claims by substantial evidence (Sec 17,
When the identity of the accused is not established The Rule on the Writ of Amparo, effective October 24,
beyond reasonable doubt, acquittal necessarily follows. 2007).
Conviction for a crime rests on the strength of the
prosecution’s evidence, never on the weakness of that of
the defense (People vs. Jalon, G.R. No. 93729, November
13, 1992).

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365 FACULTY OF CIVIL LAW
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(Bar 2003) 9. When proving that the police officers did not
PREPONDERANCE OF SUBSTANTIAL properly perform their duty or that they were
EVIDENCE (Sec. 1) EVIDENCE (Sec. 5) inspired by an improper motive (People v.
Means that the evidence Is that amount of relevant Concepcion, G.R. No. 178876, June 27, 2008); or
as a whole adduced by one evidence which a 10. When a person seeks confirmation of an imperfect
side is superior to that of reasonable might mind or incomplete title to a piece of land on the basis of
the other accept as adequate to possession by himself and his predecessors-in-
justify a conclusion interest, he must prove with clear and convincing
Applicable in civil cases Applicable in evidence compliance with the requirements of the
administrative cases or applicable law (Republic v. Imperial Credit Corp., G.R.
quasi judicial bodies No. 173088, June 25, 2008; Riano, 2009).

CLEAR AND CONVINCING EVIDENCE Evidentiary weight of electronic evidence

It is that degree of evidence that produces in the mind of In assessing the evidentiary weight of electronic
the trier of fact a firm belief or conviction as to evidence, certain factors may be considered, like:
allegations sought to be established. It is intermediate,
being more than preponderance, but not to the extent of 1. The reliability of the manner in which it was
such certainty as is required beyond reasonable doubt as generated, stored or communicated
in criminal cases (Black’s Law Dictionary, 2004). 2. The reliability of the manner in which its originator
was indentified.
XPN: Under Art. 1387, NCC, certain alienations of 3. The integrity of the information and communication
property are presumed fraudulent. system.
4. The familiarity of the witnesses or the person who
Frame up made the entry with the communication and
information system.
Allegations of frame up by police officers are common 5. The nature and quality of the information which
and standard defences in most dangerous drugs cases. went into the communication and information
For this claim to prosper the defense must adduce clear system.
and convincing evidence to overcome the presumption 6. Other factors which the courts may consider (Sec. 1,
that government officials have performed their duties in Rule 7, Rules on Electronic Evidence).
a regular and proper manner (People v. Almodiel, G.R. No.
200951, September 5, 2012). All matters relating to the admissibility and evidentiary
weight of an electronic document may be established by
Instances when clear and convincing evidence is an affidavit stating facts of direct personal knowledge of
required the affiant or based on authentic records. The affidavit ut
affirmatively show the competence of the affiant to
1. When proving forgery (Citibank, N.A. v. Sabeniano, testify on the atters contained therein (Sec. 1, Rule 9,
G.R. No. 156132, February 6, 2007); Rules on Electronic Evidence).
2. When proving ownership over a land in annulment
or reconveyance of title (Manotok Realty, Inc. v. CLT The affiant shall be made to affirm the contents of the
Realty Development Corp., G.R. No. 123346, December affidavit in open court may be cross examined as a
14, 2007); matter of right by the adverse party (Sec. 2, Rule 9, Rules
3. When invoking self-defense, the onus is on the on Electronic Evidence).
accused-appellant to establish by clear and
convincing evidence his justification for the killing JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
(People v. Tomolin, G.R. No. 126650, July 28, 1999);
4. When proving the allegation of frame-up and WHAT NEED NOT BE PROVED
extortion by police officers in most dangerous drug
cases (People v. Boco, G.R. No. 129676, June 23, Facts that need not be proved
1999);
5. When proving physical impossibility for the accused 1. Those of which the courts may take judicial notice
to be at the crime scene when using alibi as a (Rule 129);
defense (People v. Cacayan, G.R. No. 180499, July 9, 2. Those that are judicially admitted (Rule 129);
2008); 3. Those that are conclusively presumed (Rule 131);
6. When using denial as a defense like in prosecution 4. Those that are disputably presumed but
for violation of the Dangerous Drugs Act (People v. uncontradicted (Rule 131);
Mustapa, G.R. No. 141244, February 19, 2001); 5. Immaterial allegations; and
7. To overcome the presumption of due execution of 6. Facts admitted or not denied provided they have
notarized instruments (Viaje v. Pamintel, G.R. No. been sufficiently alleged (Sec. 1, Rule 8).
147792, January 23, 2006); 7. Res ipsa loquitur
8. When proving bad faith to warrant an award of
moral damages (Resolution of the SC in Cual v. Leonis
Navigation, G.R. No. 167775, October 10, 2005);

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 EVIDENCE
MATTERS OF JUDICIAL NOTICE 3. Law of nations;
4. Admiralty and maritime courts of the world and
Judicial notice their seals;
5. Political constitution and history of the Philippines;
It is the cognizance of certain facts which judges may 6. Official acts of legislative, executive and judicial
properly take and act upon without proof because they departments of the Philippines;
are supposed to be known to them. It is based on 7. Laws of nature;
considerations of expediency and convenience. It 8. Measure of time; and
displaces evidence, being equivalent to proof (Regalado, 9. Geographical divisions(Sec. 1, Rule 129)
2008).
DISCRETIONARY JUDICIAL NOTICE
Function of judicial notice
When the matter is subject to discretionary judicial
Judicial Notice dispenses the presentation of evidence notice, a hearing is necessary before judicial notice is
and fulfills the purpose for which the evidence is taken of a matter.
designed to fulfill (Moran, 1980, citing Alzua vs. Johnson,
G.R. No. 7317, January 31, 1912). Its function is to Matters which the court may take judicial notice of:
abbreviate litigation by admission of matters that needs (PDF) (Bar 2005)
no evidence because judicial notice is a substitute for
formal proof of a matter by evidence (Riano, 2013). 1. Matters which are of public knowledge;

Kinds of judicial notice NOTE: Public knowledge are those matters coming
to the knowledge of men generally in the course of
1. Mandatory – insofar as those matters ordinary experiences of life, or they may be matters
enumerated under Sec. 1, Rule 129; which are generally accepted by mankind as true
2. Discretionary – on matters which are of public and are capable of ready and unquestioned
knowledge, or are capable of unquestionable demonstration.
demonstration, or ought to be known to judges
because of their functions (Sec. 2, Rule 129). 2. Capable of unquestionable demonstration; or

Mandatory Judicial Notice vs. Discretionary NOTE: Matters which are capable of unquestionable
Judicial Notice demonstration are facts, theories and conclusions
which have come to be established and accepted by
Mandatory Judicial Discretionary the specialists in the areas of natural science,
Notice Judicial Notice natural phenomena, chronology, technology,
Court is compelled to Court is not compelled geography, statistical facts and other fields of
take judicial notice to take judicial notice professional and scientific knowledge (Francisco,
Takes place at court’s May be at court’s own 1996).
initiative initiative or on
request of a party 3. Ought to be known to judges because of their
No hearing Needs hearing and judicial functions (Sec. 2, Rule 129).
presentation of
evidence NOTE: Judicial notice is not judicial knowledge. The
mere personal knowledge of the judge is not the
When Judicial Notice of a fact may be taken judicial knowledge of the court, and he is not
authorized to make his individual knowledge of a
1. During trial; fact, not generally or professionally known, the
2. After trial and before judgment; or basis of his action. Judicial cognizance is taken only
3. Appeal. of those matters which are "commonly" known
(State Prosecutors vs. Muro, A.M. No. RTJ-92-876,
In all instances, the court may act on its own September 19, 1994).
initiative or on request of a party (Sec. 3, Rule 129).
Requisites in order that the principle of
MANDATORY JUDICIAL NOTICE discretionary judicial notice may apply

When the matter is subject to a mandatory judicial 1. The matter must be one of common and general
notice, no motion or hearing is necessary for the court knowledge;
may take judicial notice of a fact. 2. It must be well and authoritatively settled and not
doubtful or uncertain; and
Matters subject to mandatory judicial notice (EPOL- 3. It must be one which is not subject to a reasonable
APOL-MG) dispute in that it is either:
a. Generally known within the territorial
1. Existence and territorial extent of states; jurisdiction of the trial court; or
2. Political history, forms of government and symbols b. Capable of accurate and ready determination
of nationality; by resorting to sources whose accuracy cannot

UNIVERSITY OF SANTO TOMAS

367 FACULTY OF CIVIL LAW
 REMEDIAL LAW
reasonably be questionable (Expertravel & b. In case on appeal before them and wherein the
Tours, Inc. v. CA, G.R. No. 152392, May 26, 2005). inferior court took judicial notice of an
ordinance involved in the same case.
NOTE: The principal guide in determining what facts 3. Appellate courts may also take judicial notice of
may be assumed to be judicially known is that of ordinances not only because the lower courts took
notoriety (Ibid.). The test of notoriety is whether the fact judicial notice thereof but because these are facts
involved is so notoriously known as to make it proper to capable of unquestionable demonstration (Riano,
assume its existence without proof. 2013).

JUDICIAL NOTICE OF FOREIGN LAWS, Rule on judicial notice of records of another case
LAW OF NATIONS AND MUNICIPAL ORDINANCE previously tried

Judicial notice of foreign laws GR: Courts are not authorized to take judicial notice of
the contents of the records of other cases, even when
GR: Courts cannot take judicial notice of foreign laws. such cases have been tried or are pending in the same
They must be alleged and proved (Bar 2005). court, and notwithstanding the fact that both cases may
have been heard or are actually pending before the same
XPN: When said laws are within the actual knowledge of judge (Calamba Steel Center, Inc. v. CIR, G.R. No. 151857,
the court and such laws are: April 28, 2005).
1. Well and generally known;
2. Actually ruled upon in other cases before it; and XPNs:
none of the parties claim otherwise (PCIB v. Escolin, 1. When in the absence of any objection, with the
G.R. Nos. L-27860 L-278896, March 29, 1974). knowledge of the opposing party, the contents of
said other cases are clearly referred to by title and
Doctrine of Processual Presumption number in a pending action and adopted or read
into the record of the latter;
In international law, the party who wants to have a 2. When the original record of the other case or any
foreign law applied to a dispute or case has the burden of part of it is actually withdrawn from the archives at
proving the foreign law. Where a foreign law is not the court’s discretion upon the request, or with the
pleaded or even if pleaded, is not proved, the consent, of the parties, and admitted as part of the
presumption is that the foreign law is same as ours (ATCI record of the pending case (Jumamil v. Cafe, G.R. No.
Overseas Corporation, Amalia G. Ikdal and Ministry of 144570, September 21, 2005);
Public Health – Kuwait vs. Ma. Josefina Echin, G.R. No. 3. When the action is closely interrelated to another
178551, October 11, 2010). case pending between the same parties;
4. Where the interest of the public in ascertaining the
When foreign law is part of a published treatise, truth are of paramount importance;
periodical or pamphlet 5. In cases seeking to determine what is reasonable
exercise of discretion or whether or not the
When the foreign law is part of a published treatise, previous ruling is applicable in a case under
periodical or pamphlet and the writer is recognized in consideration; or
his profession or calling as expert in the subject, the 6. Where there is finality of a judgment in another case
court, it is submitted, may take judicial notice of the that was previously pending determination and
treatise containing the foreign law (Sec. 46, Rule 130). therefore, res judicata (Herrera, 1999).

When a foreign law refers to the law of nations Q: Anna and Badong were accused of killing Cathy.
However, only Anna was arrested since Badong went
When the foreign law refers to the law of nations, said into hiding. After trial, Anna was acquitted of the
law is subject to mandatory judicial notice under Sec. 1 charge in a decision rendered by Judge Santos.
of Rule 129. Under the Philippine Constitution, the Subsequently, Badong was arrested and brought to
Philippines adopts the generally accepted principles of trial. After trial, Badong was found guilty of homicide
international law as part of the law of the land (Sec. 2, in a decision rendered by Judge Yantok, the judge
Art. II, 1987 Constitution of the Philippines). Being part of who replaced Judge Santos after the latter retired.
the law of the land, they are therefore, technically in the On appeal, Badong argues that Judge Yantok should
nature of local laws and hence, are subject to mandatory have taken judicial notice of the acquittal of Anna
judicial notice under Sec. 1 of Rule 129 (Riano, 2013). rendered by Judge Santos. Is Badong correct?

Rules with regard to judicial notice of ordinances A: No. The appreciation of one judge of the testimony of
a certain witness is not binding on another judge who
1. MTCs are required to take judicial notice of the heard the testimony of the same witness on the same
ordinances of the municipality or city wherein they matter. Each magistrate who hears the testimony of a
sit. witness is called upon to make his own appreciation of
2. RTCs must take judicial notice of ordinances in force the evidence. It is, therefore, illogical to argue that
in the municipalities within their jurisdiction only: because one judge made a conclusion in a certain way
a. When expressly authorized to do so by statute; with respect to one or more of the accused; it necessarily
or dictates that the succeeding judge who heard the same

UNIVERSITY OF SANTO TOMAS

2016 GOLDEN NOTES
368
 EVIDENCE
case against the other accused should automatically on borrowers and sureties under Sec. 1, Rule 129, they
make the same conclusion (People v. Langit, G.R. Nos. nevertheless may do so under the rule on discretionary
134757-58, August 4, 2000). judicial notice (Sec. 2, Rule 129), which provides that a
court, in its discretion, may take judicial notice of
Hearing in cases of discretionary judicial notice “matters which are of public knowledge, or ought to be
known to judges because of their judicial functions”
During Trial After Trial but Before (Solidbank Corporation v. Mindanao Ferroalloy Corp., G.R.
Judgment or on Appeal No. 153535, July 28, 2005).
The court on its own The proper court, on its
initiative, or on request of own initiative or on JUDICIAL ADMISSIONS
a party, may announce its request of a party, may
intention to take judicial take judicial notice of any These are admissions, verbal or written, made by a party
notice of any matter and matter and allow the in the course of the proceedings in the same case, which
allow the parties to be parties to be heard thereon does not require proof (Sec. 4, Rule 129).
heard thereon (Sec. 3, Rule if such matter is decisive of
129). a material issue in the case Judicial admissions vs. Extrajudicial admissions
(Ibid).
Judicial Admissions Extrajudicial Admissions
NOTE: Hearing is necessary in the foregoing instances to Those made in the course Those made out of court or
afford the parties reasonable opportunity to present of the proceeding in the in a judicial proceeding
information relevant to the propriety of taking such same case other than the one under
judicial notice or the tenor of the matter to be judicially consideration
noticed. Do not require proof and Regarded as evidence and
may be contradicted only must be offered as such,
Instances when the Court takes judicial notice by showing that it was otherwise the court will
made through palpable not consider it in deciding
1. The court may take judicial notice of the existence mistake or that no such the case.
and location within the territory over which they admission was made
exercise jurisdiction of great rivers and lakes, and (Sec. 4, Rule 129).
their relation to provincial boundaries, of Judicial admissions need Requires formal offer for it
navigability of streams, constituting highway not be offered in evidence to be considered
commerce and notorious facts concerning the same since it is not evidence. It
(Banatao v. Tuliao, G.R. No. 12264, September 23, is superior to evidence and
1918). shall be considered by the
2. The SC took judicial notice that financial problem is court as established.
a factor that beset the sugar industry; that there is Conclusive upon the Rebuttable
crisis in the sugar industry (Hilado v. Leogardo, Jr., admitter
G.R. No. L-65863, June 11, 1986). Admissible even if self- Not admissible if self-
3. The SC took judicial notice of the general increase in serving serving
rentals of real estate especially of business Subject to cross- Not subject to cross-
establishments (Commander Realty, Inc. v. CA, G.R. examination examination
No. L-77227, November 29, 1988).
4. The SC took judicial notice of the reality that, Requisites of judicial admission
especially in local elections , political rivals or
operators benefited from the usually belated 1. It must be made by a party to the case or his
decisions by COMELEC on petitions to cancel or counsel;
deny due course to CoCs of potential nuisance 2. It must be made in the course of the proceedings in
candidates (Casimira S. Dela Cruz v. Commission on the same case; and
Elections, G.R. No. 192221, November 13, 2012). 3. It can be verbal or written admission. There is no
5. The SC has taken into consideration how rapists are particular form required (Regalado, 2008).
not deterred by the presence of people nearby, such
as the members of their own family inside the same Different forms of judicial admission:
room, with the likelihood of being discovered, since
lust respects no time, locale or circumstance (People 1. Verbal – Verbal waiver of proof made in open court,
of the Philippines v. Neil B. Colorado, G.R. No. 200792, a withdrawal of contention, or disclosure made
November 14, 2012). before the court, or admission made by witness in
his testimony or deposition;
NOTE: Judicial notice could be taken of the fact that 2. Writing – Pleading, bill of particulars, stipulation of
government is and has for many years been financially facts, request for admission, or a judicial admission
strapped, to the point that even the most essential contained in an affidavit used in the case (31 C.J.S
services have suffered serious curtailment (La Bugal- 1069; Programme Inc. v. Province of Bataan, G.R. No.
B’Laan Tribal Assoc. v. Ramos, December 1, 2004). 144635, June 26, 2006).

While courts are not mandated to take judicial notice of

the practice of banks in conducting background checks

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How judicial admissions are made Effect of an invalid and ineffective denial of
actionable documents attached to the complaint
Judicial admissions may be made in:
1. The pleadings filed by the parties; When an action or defense is founded upon an actionable
2. The course of the trial either by verbal or written document, the genuineness and due execution of the
manifestations or stipulations, including same instrument shall be deemed admitted unless it is
depositions, written interrogatories and requests specifically denied under oath (Sec. 8, Rule 8). The failure
for admissions; or to deny the genuineness and due execution of said
3. Other stages of the judicial proceedings, as in pre- document amounts to a judicial admission (PNB v.
trial (Binarao v. Plus Builders, Inc., 491 SCRA 49). Refrigeration Industries, Inc., GR No. 156178, January 20,
2006).
Two ways in which admissions are made in
pleadings NOTE: But the failure to deny the genuineness and due
execution of an actionable document does not preclude a
1. Actual Admission–When a party categorically admits party from arguing against the document by evidence of
a material allegation made by the adverse party. fraud, mistake, compromise, payment, statute of
2. Implied Admission– When the admission is inferred limitations, estoppel and want of consideration. He is
from the failure to specifically deny the material however, precluded from arguing that the document is a
allegations in the other party’s pleadings. forgery because the genuineness of document is
impliedly admitted (Acabal v. Acabal, G.R. 148376, March
EFFECTS OF JUDICIAL ADMISSIONS 31, 2005; PNB v. Refrigeration Industries, Inc, supra).

1. They do not require proof; and When an action or defense is founded upon a written
2. They cannot be contradicted because they are instrument, copied in or attached to the corresponding
conclusive upon the parties (Ibid.). pleading as provided by Sec. 7, the genuineness and due
execution of the instrument shall be deemed admitted
NOTE: Judicial admissions are conclusive and no unless the adverse party, under oath, specifically denies
evidence is required to prove the same (Solivio v. CA, G.R. them, and sets forth what he claims to be the facts; but
No. 83484, February 12, 1990) the requirement of an oath does not apply when the
adverse party does not appear to be a party to the
Admissions made in pleadings which were NOT filed instrument or when compliance with an order for an
with the court inspection of the original instrument is refused (Sec. 8,
Rule 8).
Admissions made therein are not judicial admissions:
1. If signed by the party litigant himself – Considered as Admissions in the pre-trial of civil cases
extrajudicial admission.
2. If signed by the counsel – Not admissible because a One of the purposes of pre-trial in civil cases is for the
counsel only binds his client with respect to court to consider the possibility of obtaining stipulations
admissions in open court and in pleadings actually or admissions of facts (Sec.2 (d), Rule 18). A pre-trial is
filed with the court (Riano, 2013). mandatory and because it is mandatory, it is an
important part of civil proceeding. Admissions therefore,
Averments in pleadings which are not deemed in the pre-trial, as well as those made during depositions,
admissions interrogatories or requests for admissions, are all
deemed judicial admissions because they are made in the
There are averments in the pleadings which are not course of the proceedings of the case (Riano, 2013).
deemed admitted even if the adverse party fails to make
a specific denial of the same like: The admission having been made in the stipulation of
a. immaterial allegations (Sec. 11, Rule 8) facts at pre-trial by the parties, it must be treated as a
b. conclusions, non-ultimate facts in the judicial admission. It requires no proof (Eastern Shipping
pleadings (Sec 1, Rule 8) Lines, Inc. v. BPI/MS Insurance Corp., G.R. No. 182864,
c. amount of unliquidated damages (Sec. 11, Rule January 12, 2015).
8)
Admissions in the pre-trial of criminal cases
Implied admission of allegations of usury
Admission made by the accused in the pre-trial of a
If the complaint makes an allegation of usury to recover criminal case is not necessarily admissible against him.
usurious interest, the defendant must not only specially To be admissible the conditions set forth by Sec. 2 of
deny the same but must likewise do so under oath. Rule 118 must be complied with.
Failure to make the proper denial under oath would
involve an implied admission of the allegation of usury. All the agreements or admissions made or entered
(Riano, 2013). during the pre-trial conference shall be:
a. reduced into writing
b. signed by the accused and counsel

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 EVIDENCE
Otherwise, they cannot be used against the accused the senses of the court (Sec. 1, Rule 130). It is not limited
(Sec.2, Rule 118). to the view of an object. It covers the entire range of
human senses: hearing, taste, smell, and touch (Riano,
Rule in case of admissions made in amended 2013).
pleadings
NOTE: Physical evidence is a mute but eloquent
Admissions in a pleading which had been withdrawn or manifestation of truth and it ranks high in our hierarchy
superseded by an amended pleading, although filed in of trustworthy evidence- where physical evidence runs
the same case, are considered as extrajudicial admissions. counter to testimonial evidence, the physical evidence
The original must be proved by the party who relies should prevail (Bank of the Philippine Islands v. Reyes,
thereon by formally offering it in evidence (Torres v. CA, G.R. No. 149840-41, March 31, 2006).
G.R. Nos. L-37420-21, July 31, 1984). Pleadings that have
been amended disappear from the record, lose their Documents are object (real) evidence if the purpose is to
status as pleadings and cease to be judicial admissions, prove their existence or condition, or the nature of the
and to be utilized as extrajudicial admission, they must, handwriting thereon, or to determine the age of the
in order to have such effect, be formally offered in paper used, or the blemishes or alterations thereon, as
evidence (Ching v. Court of Appeals, G.R. No. 110844, April where falsification is alleged (Regalado, 2008).
27, 2000).
Examples of object evidence
Rule with regard to self-serving evidence
1. Any article or object which may be known or
The self-serving rule is not applicable to judicial perceived by the use of the senses;
admissions. If the declaration is made in open court, it is 2. Examination of the anatomy of a person or of any
admissible because the witness may be cross-examined substance taken therefrom;
on that matter. 3. Conduct of tests, demonstrations or experiments;
4. Examination of representative portrayals of the
Effect of a guilty plea made by the accused during his object in question (e.g. maps, diagrams);
arraignment which was later on withdrawn 5. Documents, if the purpose is to prove their
existence or condition, or the nature of the
A plea of guilty entered by the accused may be later handwriting thereon or to determine the age of the
withdrawn at any time before the judgment of conviction paper used, or the blemishes or alterations
becomes final. Such plea is not admissible in evidence (Regalado, 2008); and
against the accused and is not even considered as an 6. A person’s appearance, where relevant (People v.
extrajudicial admission. Rullepa, G.R. No. 131516, March 5, 2003).

HOW JUDICIAL ADMISSIONS Paraffin test

MAY BE CONTRADICTED
A test which can establish the presence or absence of
Grounds for contradicting judicial admissions nitrates or nitrites on the hand but the test alone cannot
determine whether the source of the nitrates or nitrites
1. Upon showing that the admission was made was discharge of a firearm.
through palpable mistake; or
2. When it is shown that no such admission was made NOTE: The paraffin test is merely corroborative
(Sec. 4, Rule 129). evidence, neither proving nor disproving that a person
did indeed fire a gun. The positive or negative results of
Remedy of party who made a judicial admission the test can be influenced by certain factors such as the
wearing of gloves by the subject, perspiration of the
1. Written admission – File a motion to withdraw such hands, wind direction, etc. (People v. Buduhan, G.R. No.
pleading, or any other written instrument 178196, August 6, 2008).
containing such admission; and
2. Oral admission – The counsel may move for the Polygraph test (Lie Detector Tests)
exclusion of such admission.
It is an electromechanical instrument that
OBJECT (REAL) EVIDENCE simultaneously measures and records certain
physiological changes in the human body that are
NATURE OF OBJECT EVIDENCE believed to be involuntarily caused by an examinee’s
conscious attempt to deceive the questioner (West’s
Object as evidence are those addressed to the senses of Legal Thesaurus Dictionary, 1986).
the court. When an object is relevant to the fact in issue,
it may be exhibited to, examined or viewed by the court A polygraph test operates on the principle that stress
(Sec. 1, Rule 130) (Bar 2005) causes physiological changes in the body which can be
measured to indicate whether the subject examination is
Object evidence, also known as real evidence, telling the truth (Riano, 2013).
demonstrative evidence, autoptic preference and
physical evidence, is that evidence which is addressed to

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Q: Ron was charged with murder for shooting Carlo. former condition of the object and there is no
After trial, Ron was found guilty as charged. On preliminary showing that there has been no
appeal, Ron argued that the trial court should have substantial change in said condition; or
acquitted him as his guilt was not proved beyond 4. The testimonial or documentary evidence already
reasonable doubt. He argues that the paraffin test presented clearly portrays the object in question as
conducted on him 2 days after he was arrested to render a view thereof unnecessary (Regalado,
yielded a negative result. Hence, he could not have 2008).
shot Carlo. Is Ron correct?
Q: In a criminal case for murder, the prosecution
A: No. While the paraffin test was negative, such fact offered as evidence, photographs showing the
alone did not ipso facto prove that Ron is innocent. A accused mauling the victim with several of the
negative paraffin result is not conclusive proof that a latter’s companions. The person who took the
person has not fired a gun. It is possible to fire a gun and photograph was not presented as a witness. Be that
yet be negative for nitrates, as when the culprit is as it may, the prosecution presented the companions
wearing gloves or he washes his hands afterwards. Here, of the victim who testified that they were the ones in
since Ron submitted himself for paraffin testing only two the photographs. The defense objected to the
days after the shooting, it was likely he had already admissibility of the photographs because the person
washed his hands thoroughly, thus removing all traces of who took the photographs was not presented as
nitrates therefrom (People v. Brecinio, G.R. No. 138534, witness. Is the contention of the defense tenable?
March 17, 2004).
A: No. Photographs, when presented in evidence, must
REQUISITES FOR ADMISSIBILITY be identified by the photographer as to its production
and testified as to the circumstances under which they
1. It must be relevant and competent; were produced. The value of this kind of evidence lies in
2. Authenticated; its being a correct representation or reproduction of the
original, and its admissibility is determined by its
NOTE: To authenticate the object, it must be shown accuracy in portraying the scene at the time of the crime.
that the object is the very thing that is either the
subject matter of the law suit or the very one The photographer, however, is not the only witness who
involved to prove an issue in the case. can identify the pictures he has taken. The correctness of
the photograph as a faithful representation of the object
3. The authentication must be made by a competent portrayed can be proved prima facie, either by the
witness who should identify the object to be the testimony of the person who made it or by other
actual thing involved; and competent witnesses who can testify to its exactness and
4. The object must be formally offered in evidence accuracy, after which the court can admit it subject to
(Riano, 2013). impeachment as to its accuracy. Here, the photographs
are admissible as evidence inasmuch as the correctness
Purposes of authentication of object evidence thereof was testified to by the companions of the victim
(Sison v. People, G.R. Nos. 108280-83, November 16, 1995).
1. Prevent the introduction of an object different from
the one testified about; and Q: Appellant Thor was charged with and convicted of
2. Ensure that there have been no significant changes the special complex crime of robbery with homicide
in the object’s condition. by the trial court. On his appeal, he asseverates that
the admission as evidence of victim's wallet together
Circumstances when the court may refuse the with its contents, violates his right against self-
introduction of object or real evidence and rely on incrimination. Likewise, Thor sought for their
testimonial evidence alone exclusion because during the custodial investigation,
wherein he pointed to the investigating policemen
1. Its exhibition is contrary to public morals or the place where he hid the victim's wallet, he was not
decency; informed of his constitutional rights (Miranda
rights). Decide the case.
NOTE: But if the exhibition of such object is
necessary in the interest of justice, it may still be A: The right against self-incrimination guaranteed under
exhibited, and the court may exclude the public our fundamental law finds no application in this case.
from such view. Such exhibition may not be refused This right is simply a prohibition against legal process to
if the indecent or immoral objects constitute the extract from the [accused]'s own lips, against his will,
very basis of the criminal or civil action (Moran, admission of his guilt. It does not apply to the instant
1980). case where the evidence sought to be excluded is not an
incriminating statement but an object evidence.
2. To require its being viewed in court or in ocular Infractions on the so-called “Miranda rights” render
inspection would result in delays, inconvenience, or inadmissible only the extrajudicial confession or
unnecessary expenses which are out of proportion admission made during custodial investigation. The
to the evidentiary value of such object; admissibility of other evidence is not affected even if
3. Such object evidence would be confusing or obtained or taken in the course of custodial
misleading, as when the purpose is to prove the investigation. Concededly, Thor was not informed of his

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 EVIDENCE
rights during the custodial investigation. Neither did he vs. Abucejo-Luzano, et al., A.M. No. MTJ-00-1298, August 3,
execute a written waiver of these rights in accordance 2000).
with the constitutional prescriptions. Nevertheless, these
constitutional shortcuts do not affect the admissibility of CHAIN OF CUSTODY IN RELATION TO
the victim's wallet and its contents (People v. Malimit, SECTION 21 OF THE COMPREHENSIVE DANGEROUS
G.R. No. 109775, November 14, 1996). DRUGS ACT OF 2002
(AS AMENDED BY R.A. 10640)
CATEGORIES OF OBJECT EVIDENCE
Chain of custody
Categories of object evidence for purposes of
authentication It is the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant
1. Unique objects – Those that have readily identifiable sources of dangerous drugs or laboratory equipment of
marks (e.g. a calibre 40 gun with serial number each stage:
XXX888); 1. From the time of seizure/confiscation to;
2. Objects made unique – Those that are made readily 2. Receipt in the forensic laboratory to;
identifiable (e.g. a bolo knife used to hack a victim 3. Safekeeping to;
which could be identified by a witness in court); and 4. Presentation in court for destruction.
3. Non-unique objects – Those which have no
identifying marks and cannot be marked (e.g. drops Such record of movements and custody of seized item
of blood) (Riano, 2013). shall include the identity and signature of the person
who held temporary custody of the seized item, the date
DEMONSTRATIVE EVIDENCE and time when such transfer of custody were made in
the course of safekeeping and used in court as evidence
Real evidence Demonstrative and the final disposition (Sec. 1, DDB Reg. No. 1, Series of
Evidence 2002).
Tangible object that Tangible evidence that
played some actual role in merely illustrates a Purpose of establishing a chain of custody
the matter that gave rise matter of importance in
to the litigation the litigation To guarantee the integrity of the physical evidence and
Intends to prove that the Intends to show that the to prevent the introduction of evidence which is not
object is used in the demonstrative object authentic but where the exhibit is positively identified
underlying event fairly represents or the chain of custody of physical evidence is irrelevant.
illustrates a real evidence
Necessity of establishing a chain of custody
Illustration: Where a
drawing is presented to It is necessary when the object evidence is non-unique as
illustrate the relative it is not readily identifiable, was not made identifiable or
positions of the cannot be made identifiable, e.g. drops of blood or oil,
protagonists and drugs in powder form, fiber, and grains of sand and
witnesses to the killing, similar objects (Riano, 2013).
the foundation for
demonstrative evidence Discuss the principle of “chain of custody” with
will normally consist of respect to evidence seized under RA 9165. (Bar
the testimony of an 2012)
eyewitness or investigator
stating that the drawing In prosecutions involving narcotics and other illegal
was indeed fairly substances, the substance itself constitutes part of the
represents the position of corpus delicti of the offense and the fact of its existence is
those present in the event vital to sustain a judgment of conviction beyond
(Francisco, 1996). reasonable doubt. The chain of custody requirement is
essential to ensure that doubts regarding the identity of
VIEW OF AN OBJECT OR SCENE the evidence are removed through the monitoring and
tracking of the movements of the seized drugs from the
When an object is relevant to the fact in issue, it may be accused, to the police, to the forensic chemist, and finally
exhibited to, examined or viewed by the court (Sec 1, to the court (People v. Sitco, G.R. No. 178202, May 14,
Rule 130). 2010). Ergo, the existence of the dangerous drug is a
condition sine qua non for conviction. The failure to
Where the object in question cannot be produced in establish, through convincing proof, that the integrity of
court because it is immovable or inconvenient to the seized items has been adequately preserved through
remove, it is proper for the tribunal to go to the object in an unbroken chain of custody is enough to engender
its place and there observe it (Francisco, 1996).An ocular reasonable doubt on the guilt of an accused (People v. De
inspection conducted by the judge without the presence Guzman y Danzil, G.R. No. 186498, March 26, 2010).
of the parties or due notice is not valid, as an ocular
inspection is part of the trial (Regalado, 2008, citing Adan

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Procedure to be followed in the handling and
custody of seized dangerous drugs

The apprehending team having initial custody and

control of the drugs shall, immediately after seizure and
INVENTORY/PHOTOGRAPH
confiscation, physically inventory and photograph the Immediately in the presence of the accused or the person from
same in the presence of the accused or the person/s whom such items were seized, or his representative or counsel,
from whom such items were confiscated and/or seized a representative from the media and the National Prosecutor
or his/her representative or counsel, a representative Service, and any elected public official who shall be required to
from the media, and a representative of the National sign the copies of the inventory and be given a copy thereof;
Prosecutor Service, and any elected public official who
shall be required to sign the copies of the inventory and
be given a copy thereof.

The prosecution must establish in the chain of custody in

a buy bust situation to be as follows:

First Link - the seizure and marking, if practicable, of the

illegal drug recovered from the accused by the
apprehending officer
Second Link - the turnover of the illegal drug seized by
the apprehending officer to the investigating officer
Third Link - the turnover by the investigating officer of
the illegal drug to the forensic chemist for laboratory
examination
Fourth Link - the turnover and submission of the marked
illegal drug seized by the forensic chemist to the court
(People v. Dahil, G.R. No. 212196, January 12, 2015).

NOTE: In cases involving violations of the Dangerous

Drugs Act, credence is given to prosecution witnesses
who are police officers for they are presumed to have
performed their duties in a regular manner, unless there
is evidence to the contrary suggesting ill-motive on the
part of the police officers (People v. De Guzman, G.R. No.
177569, November 28, 2007).

Importance of marking requirement as to

preservation of chain of custody

Crucial in proving chain of custody is the marking of the

seized drugs or other related items immediately after
they are seized from the accused. Marking after seizure
is the starting point in the custodial link, thus it is vital
that the seized contraband is immediately marked
because succeeding handlers of the specimens will use
the markings as reference. The marking of the evidence
serves to separate the marked evidence from the corpus
of all other similar or related evidence from the time
they are seized from the accused until they are disposed
of at the end of criminal proceedings, obviating

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 EVIDENCE
switching, "planting," or contamination of evidence inadmissible as evidence (People v. Magbanua, G.R. No.
(People v. Coreche, G.R. No. 182528, August 14, 2009). 170137, August 27, 2009).

Non-compliance with the procedure Presentation of informant is not a prerequisite in

drug cases
Non-compliance with Sec. 21, Art. II of RA 9165 is not
fatal and will not render an accused's arrest illegal or the The presentation of an informant is not a requisite in the
items seized/confiscated from him or her inadmissible. prosecution of drug cases. The failure of the prosecution
What is material is the proof that the transaction actually to present the informant does not vitiate its cause as the
took place, coupled with the presentation before the latter's testimony is not indispensable to a successful
court of a specimen of the seized object as part of the prosecution for drug-pushing, since his testimony would
corpus delicti. be merely corroborative of and cumulative with that of
the poseur-buyer who was presented in court and who
Non-compliance with the procedure shall not render testified on the facts and circumstances of the sale and
void and invalid the seizure of and custody of the drugs delivery of the prohibited drug (People v. Naquita, G.R.
only when: No. 180511, July 28, 2008).
1. Such non-compliance was under justifiable grounds;
and RULE ON DNA EVIDENCE
2. The integrity and the evidentiary value of the seized (A.M. NO. 06-11-5- SC)
items are properly preserved by the apprehending
team (as amended by R.A. 10640, Sec. 21 of the Application of Rule on DNA Evidence
Comprehensive Dangerous Drugs Act of 2002).
It shall apply whenever DNA evidence is offered, used, or
NOTE: What is of utmost importance is the preservation proposed to be offered or used as evidence in all criminal
of the integrity and evidentiary value of the seized items, and civil actions as well as special proceedings (Sec. 1,
as the same would be utilized in the determination of the AM No. 06-11-5-SC).
guilt or innocence of the accused. The existence of the
dangerous drug is a condition sine qua non for When a matter is not specifically governed by the Rule
conviction for the illegal sale of dangerous drugs. The on DNA Evidence, the Rules of Court and other pertinent
dangerous drug itself constitutes the very corpus delicti provisions of the law on evidence shall apply (Sec 2, AM
of the crime and the fact of its existence is vital to a No. 06-11-5-SC).
judgment of conviction. The chain of custody
requirement performs the function of ensuring that the MEANING OF DNA
integrity and evidentiary value of the seized items are
preserved, so much so that unnecessary doubts as to the DNA (deoxyribonucleic acid) is the chain of molecules
identity of the evidence are removed (People v. Rivera, found in every nucleated cell of the body (Sec. 3, AM No.
G.R. No. 182347, October 17, 2008). 06-11-5-SC). It is the fundamental building block of a
person’s entire genetic make-up, which is found in all
When no physical inventory or photograph of the human cells and is the same in every cell of the same
confiscated evidence person (People v. Umanito, G.R. No. 172607, October 26,
2007).
Generally, non-compliance with Secs. 21 and 86 of RA
9165 does not mean that no buy-bust operation against DNA profile
appellant ever took place. The prosecution’s failure to
submit in evidence the required physical inventory and It is the genetic information derived from DNA testing of
photograph of the evidence confiscated pursuant to Sec. a biological sample obtained from a person, which
21, Art. II of RA 9165 will not discharge the accused from biological sample is clearly identifiable as originating
the crime. Non-compliance with said section is not fatal from that person (Sec. 3(d), AM No. 06-11-5-S).
and will not render an accused’s arrest illegal or the
items seized or confiscated from him admissible (People DNA evidence
v. Dela Cruz, G.R. No. 185717, June 8, 2011).
It constitutes the totality of the DNA profiles, results and
Failure of apprehending officer/team to issue receipt other genetic information directly generated from DNA
testing of biological samples (Sec. 3(c), AM No. 06-11-5-
The non-issuance of a receipt for the confiscated drugs SC).
weakens the prosecution's case, since such a receipt is
not essential to establishing a criminal case for selling or DNA testing
possessing drugs as it is not an element of either crime
(People v. Faizal Askalani, G.R. No. 196257, February 8, It means verified and credible scientific methods which
2012). include the extraction of DNA from biological samples,
the generation of DNA profiles and the comparison of the
As long as the integrity and the evidentiary value of the information obtained from the DNA testing of biological
confiscated/seized items, are properly preserved by the samples for the purpose of determining, with reasonable
apprehending officer/team, the failure to issue a receipt certainty, whether or not the DNA obtained from two or
will not render the items seized/confiscated more distinct biological samples originates from the

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same person (direct identification) or if the biological 5. The existence of other factors, if any, which the
samples originate from related persons (Kinship court may consider as potentially affecting the
Analysis) (Sec. 3(e), AM No. 06-11-5-SC). accuracy or integrity of the DNA testing (Sec. 4, AM
No. 06-11-5-SC).
NOTE: The scientific basis of this test comes from the
fact that our differences as individuals are due to the Finding that the above requirements have been complied
differences in the composition of our genes. These genes with, the court shall now issue an order, if appropriate
comprise a chemical substance, the deoxyribonucleic to:
acid or DNA (The Court Systems Journal, 1999). 1. Take biological samples from any person or crime
scene evidence;
Significance of DNA 2. Impose reasonable conditions on the testing to
protect integrity of the biological sample and the
The significance lies in the uniqueness of the totality of reliability of the test results (Sec. 5, AM No. 06-11-5-
the DNA of a person. It is a scientific fact that the totality SC).
of individual’s DNA is unique for the individual, except
identical twins (Sec. 3, AM No. 06-11-5-SC). DNA testing without prior court order

Q: During Alexis’ trial for rape with murder, the The Rules on DNA Evidence allows a testing without
prosecution sought to introduce DNA evidence prior court order if done before a suit or proceeding is
against him, based on forensic laboratory matching commenced at the behest of any party including law
of the materials found at the crime scene and Alexis’ enforcement agencies. This also means that litigation
hair and blood samples. Alexis’ counsel objected, need not exist prior to DNA testing. Thus, a court order
claiming that DNA evidence is inadmissible because shall be required only if there is a pending litigation but
the materials taken from Alexis were in violation of not before the litigation (Sec. 4, AM No. 06-11-5-SC).
his constitutional right against self-incrimination as
well as his right of privacy and personal integrity. Order granting DNA testing immediately executory,
Should the DNA evidence be admitted or not? not appealable
Reason. (2004 Bar Question)
An order granting the DNA testing shall be immediately
A: The DNA evidence should be admitted. It is not in executory and shall not be appealable. Any petition for
violation of the constitutional right against self- certiorari initiated therefrom shall not, in any way, stay
incrimination or his right of privacy and personal the implementation thereof, unless a higher court issues
integrity. The right against self-incrimination is an injunctive order (Sec. 5, AM No. 06-11-5-SC).
applicable only to testimonial evidence. Extracting a
blood sample and cutting a strand from the hair of the Admissibility of a grant of a DNA testing application
accused are purely mechanical acts that do not involve
his discretion nor require his intelligence (People v. The grant of a DNA testing application shall not be
Yatar, G.R. No. 150224, May 19, 2004). construed as an automatic admission into evidence of
any component of the DNA evidence that may be
APPLICABLE FOR DNA TESTING ORDER obtained as a result thereof (Sec. 5, AM No. 06-11-5-SC).

DNA Testing Order Factors that the courts must consider in evaluating
DNA testing results
A person who has a legal interest in the litigation may
file an application before the appropriate court, at any 1. The evaluation of the weight of matching DNA
time (Sec. 4, AM No. 06-11-5-SC). evidence or the relevance of mismatching DNA
evidence;
The order for a DNA testing shall not however, be issued 2. The results of the DNA testing in the light of the
as a matter of course and from the mere fact that the totality of the other evidence presented in the case;
person requesting for the testing has a legal interest in and
the litigation. For the order to be issued, there must be a 3. DNA results that exclude the putative parent from
further showing that: paternity shall be conclusive proof of non-paternity
1. A biological sample exists that is relevant to the (Sec. 9, AM No. 06-11-5-SC).
case;
2. The biological sample: Possible results of DNA testing
a. Was not previously subjected to the type of
DNA testing now requested; or 1. The samples are similar, and could have originated
b. Was previously subjected to DNA testing, but from the same source (Rule of Inclusion). In such a
the results may require confirmation for good case, the analyst proceeds to determine the
reasons; statistical significance of the similarity.
3. The DNA testing uses a scientifically valid 2. The samples are different hence it must have
technique; originated from different sources (Rule of
4. The DNA testing has the scientific potential to Exclusion). This conclusion is absolute and requires
produce new information that is relevant to the no further analysis.
proper resolution of the case; and

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3. The test is inconclusive. This might occur due to Remedy of the convict if the result is favorable to
degradation, contamination, failure of some aspect him
of protocol, or some other reasons. Analysis might
be repeated to obtain a more conclusive result Either the convict or the prosecution may file a petition
(People v. Vallejo, G.R. No. 144656, May 9, 2002). for a writ of habeas corpus in the court of origin. In case
the court, after due hearing, finds the petition to be
Confidentiality of DNA profiles meritorious, it shall reverse or modify the judgment of
conviction and order the release of the convict, unless
DNA profiles and all results or other information continued detention is justified for a lawful cause. The
obtained from DNA testing shall be confidential. Except petition shall be filed in the court of origin as a rule.
upon order of the court, a DNA profile and all results or However, the rule also allows the petition to be filed
other information obtained from DNA testing shall only either in the CA or in the SC, or with any member of said
be released to any of the following, under such terms and courts. A hearing may be conducted by the latter courts
conditions as may be set forth by the court: or by any member thereof or instead of conducting a
1. Person from whom the sample was taken; hearing, may instead remand the petition to the court of
2. Lawyers of private complainants in a criminal origin and issue the appropriate orders (Sec. 10, A.M. No.
action; 06-11-5-SC).
3. Duly authorized law enforcement agencies; and
4. Other persons as determined by the court (Sec.11, ASSESSMENT OF PROBATIVE VALUE
A.M. No. 06-11-5-SC). OF DNA EVIDENCE AND ADMISSIBILITY

NOTE: Whoever discloses, utilizes or publishes in any Matters that the court should consider in
form any information concerning a DNA profile without determining the probative value of DNA evidence
the proper court order shall be liable for indirect
contempt of the court wherein such DNA evidence was 1. The chain of custody, including how the biological
offered, presented or sought to be offered and presented samples were collected, how they were handled,
(Ibid.). and the possibility of contamination of the samples;
2. The DNA testing methodology, including the
DNA testing in determining paternity procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure, and
1. DNA analysis that excludes the putative father from compliance with the scientifically valid standards in
paternity should be conclusive proof of non- conducting the tests;
paternity. 3. The forensic DNA laboratory, including
2. If the value of Probability of Paternity is less than accreditation by any reputable standards-setting
99.9%, the results of the DNA analysis should be institution and the qualification of the analyst who
considered as corroborative evidence. conducted the tests. If the laboratory is not
3. If the value of Probability of Paternity is 99.9% or accredited, the relevant experience of the laboratory
higher, then there is refutable presumption of in forensic casework and credibility shall be
paternity. properly established; and
4. The reliability of the testing result (Sec. 7, AM No.
This refutable presumption of paternity should be 06-11-5-SC).
subjected to the Vallejo standards (Herrera v. Alba, G.R.
No. 148220, June 15, 2005). Vallejo Standard

POST-CONVICTION DNA TESTING; REMEDY Q: In a prosecution for rape, the defense relied on
Deoxyribonucleic Acid (DNA) evidence showing that
Availability of post-conviction DNA testing the semen found in the private part of the victim was
not identical with that of the accused’s. As private
Post-conviction DNA testing may be available, without prosecutor, how will you dispute the veracity and
need of prior court order, to the prosecution or any accuracy of the results of the DNA evidence? (2010
person convicted by final and executory judgment (Sec. Bar Question)
6, A.M. No. 06-11-5-SC).
A: As private prosecutor, I would impugn the probative
Requisites for the applicability of the post-conviction value of the evidence by showing errors in any of the
DNA testing: (ER2) following:
1. How the samples were collected;
1. Existing biological sample; 2. How they were handled;
2. Such sample is relevant to the case; and 3. The possibility of contamination of the samples;
3. The testing would probably result in the reversal or 4. The procedure followed in analyzing the samples;
modification of the judgment of conviction (Sec. 6, 5. Whether the proper standards and procedures were
A.M. No. 06-11-5-SC). followed in conducting the tests; and
6. The qualification of the analyst who conducted the
tests (People v. Vallejo, G.R. No. 144656, May 9, 2002).

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RULES ON EVALUATION OF RELIABILITY Q: May a private document be offered and admitted
OF THE DNA TESTING METHODOLOGY in evidence both as documentary evidence and
object evidence? (Bar 2005)
Matters to consider in evaluating reliability of DNA
testing methodology A: Yes. A private document may be offered and admitted
in evidence both as documentary evidence and as object
1. The falsifiability of the principles or methods used, evidence depending on the purpose for which the
that is, whether the theory or technique can be and document is offered. If offered to prove its existence,
has been tested; conditions or for any purpose other than the contents of
2. The subjection to peer review and publication of the a document, the same is considered as an object
principles or methods; evidence. When the private document is offered as proof
3. The general acceptance of the principles or methods of its contents, the same is considered as documentary
by the relevant scientific community; evidence. The document may be offered for both
4. The existence and maintenance of standards and purposes under the principle of multiple admissibility
controls to ensure the correctness of data (Riano, 2013).
generated;
5. The existence of an appropriate reference REQUISITES FOR ADMISSIBILITY
population database; and
6. The general degree of confidence attributed to 1. The document should be relevant;
mathematical calculations used in comparing DNA 2. The documents should be authenticated and proved
profiles and the significance and limitation of in the manner provided in the Rules of Court (Chua
statistical calculations used in comparing DNA v. CA, G.R. No. 88383, February 19, 1992). Such
profiles (Sec. 8, Ibid.). authentication must be done by a competent
witness;
DOCUMENTARY EVIDENCE 3. The documents should be identified and marked;
and
MEANING OF DOCUMENTARY EVIDENCE 4. They should be formally offered to the court and
shown to the opposing party so that the latter may
Documents as evidence consist of writings or any have the opportunity to object thereto(Ramcar, Inc.
material containing letters, words, numbers, figures, vs. Hi-Power Marketing, g.r. No. 157075, July 17,
symbols, or other modes of written expressions, offered 2006).
as proof of their contents (Sec. 2, Rule 130).
Q: When Linda died, her common law husband, Lito
Document and their alleged daughter, Nes, executed an
extrajudicial partition of Linda’s estate. Thereafter,
A document is a deed, instrument or other duly the siblings of Linda filed an action for partition of
notarized paper by which something is proved, Linda’s estate and annulment of titles and damages
evidenced or set forth (Regalado, 2008). with the RTC. The RTC dismissed the complaint and
ruled that Nes was the illegitimate daughter of the
NOTE: Any instrument notarized by a notary public or a decedent and Lito based solely on her birth
competent public official, with the solemnities required certificate, which on closer examination, reveals that
by law, is a public document. Pleadings filed in a case and Nes was listed as “adopted” by both Linda and Lito. Is
in the custody of the clerk of court are public documents. the trial court correct?
All other documents are private documents (Bermejo vs.
Barrios, G.R. No. L-23614, February 27,1970). A: No. A record of birth is merely a prima facie evidence
of the facts contained therein. It is not conclusive
Two categories of documentary evidence evidence of the truthfulness of the statements made
therein by the interested parties. Nes should have
1. Writings; adduced evidence of her adoption, in view of the
2. Any other material containing modes of written contents of her birth certificate. The mere registration of
expressions – the material contains letters, words, a child in his or her birth certificate as the child of the
numbers, figures, symbols or other modes of written supposed parents is not a valid adoption, does not confer
expression and offered as proof of their contents upon the child the status of an adopted child and the
(Riano, 2013). legal rights of such child, and even amounts to
simulation of the child's birth or falsification of his or her
Tape-recording as documentary evidence birth certificate, which is a public document. The records
however are bereft of any such evidence (Rivera v. Heirs
If a tape recording is played in order to show that of Villanueva, G.R. No. 141501, July 21, 2006).
particular words were uttered, it will constitute a
documentary evidence. However, if it is played to simply Theory of indivisibility (Rule on Completeness)
show that words were uttered in a particular accent,
then it is an object evidence (Francisco, 1996). When part of an act, declaration, conversation, writing or
record is given in evidence by one party, the whole of the
same subject may be inquired into by the other; and
when a detached act, declaration, conversation, writing,

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or record is given in evidence, any other act, declaration, Q: What is the reason underlying the adoption of the
conversation, writing or record necessary to its best evidence rule? (Bar 1998)
understanding may also be given in evidence (Sec. 17,
Rule 132). A: There is a need to present to the court the exact words
of a writing where a slight variation of words may mean
BEST EVIDENCE RULE a great difference in rights. It is also for the prevention of
fraud or mistake in the proof of the contents of a writing
MEANING OF THE RULE
WHEN APPLICABLE
GR: It provides that when the subject of the inquiry is the
contents of the document, no evidence shall be Requisites for the applicability of the Best Evidence
admissible other than the original document itself. Rule

XPNs: (LCNP) 1. The subject matter must involve a document; and

1. When the original has been lost or destroyed, or 2. The subject of the inquiry is the contents of the
cannot be produced in court, without bad faith on document.
the part of the offeror;
2. When the original is in the custody or under the NOTE: When the truth of the document is in issue and
control of the party against whom the evidence is not the contents thereof, the best evidence rule will not
offered, and the latter fails to produce it after be applicable. In such case, it is the hearsay rule that will
reasonable notice; apply (Riano, 2013).
3. When the original consists of numerous accounts or
other documents which cannot be examined in Subject of inquiry
court without great loss of time and the fact sought
to be established from them is only the general When the best evidence rule comes into operation, it is
result of the whole; presumed that the subject of the inquiry is the contents
4. When the original is a public record in the custody of the document, thus the party offering the document
of a public officer or is recorded in a public office must present the original thereof and not any other
(Sec. 3, Rule 130) (BAR 1997). secondary evidence.

NOTE: Where the issue is only as to whether such a Collateral Facts Rule
document was actually executed, or exists, or on the
circumstances relevant to or surrounding its execution A document or writing which is merely “collateral” to the
or delivery (external facts), the best evidence rule does issue involved in the case on trial need not be proved.
not apply and testimonial evidence is admissible (Moran, Where the purpose of presenting a document is not to
1980). prove its contents, but merely to give coherence to, or to
make intelligible the testimony of a witness regarding a
The Best Evidence Rule, applied to documentary fact contemporaneous to the writing, the original of the
evidence, operates as a rule of exclusion, that is, document need not be presented.
secondary evidence cannot be inceptively be introduced
as the original writing itself must be produced in court, MEANING OF ORIGINAL DOCUMENT
except in the four instances mentioned in Sec. 3
(Regalado, 2008). 1. The original of a document is one the contents of
which are the subject of inquiry;
Best Evidence Rule different from best evidence 2. When a document is in two or more copies executed
at or about the same time, with identical contents,
The best evidence rule is often described as a misnomer. including signed carbon copies, all such copies are
Despite the word “best,” the rule does not proclaim itself equally regarded as originals; or
as the highest and most reliable evidence in the
hierarchy of evidence. The term “best” has nothing to do NOTE: When carbon sheets are inserted between
with the degree of its probative value in relation to other two or more sheets of writing paper so that the
types of evidentiary rules. It is not intended to mean the writing of a contract upon the outside sheet,
“most superior” evidence. More accurately, it is the including the signature of the party to be charged
“original document” rule, or primary evidence rule (Bar thereby, produces a facsimile upon the sheets
1994, as cited in Riano, 2013). beneath, such signature being thus reproduced by
the same stroke of pen which made the surface or
NOTE: The “Best evidence rule” is a misnomer because it exposed impression, all of the sheets so written on
allows introduction of secondary evidence whenever the are regarded as duplicate originals and either of
“best evidence” is not available. It does not refer to the them may be introduced in evidence as such
exclusivity of the “best evidence” but rather allows without accounting for the nonproduction of the
exceptions in certain circumstances. Further, it is a others (Trans-pacific Industrial Supplies v. CA, G.R.
misnomer since it applies only to documentary evidence No. 109172, August 19, 1994).
and not to other types of evidence
3. When an entry is repeated in the regular course of
business, one being copied from another at or near

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the time of the transaction, including entries in falls under any of the exceptions in Sec. 3, Rule 130, gives
journals and ledgers, all the entries are likewise rise to the presumption of suppression of evidence (De
equally regarded as originals (Sec. 4, Rule 130) (BAR Vera, et al. v. Aguilar, et al. G.R. No. 83377, February 9,
2001) 1993).

NOTE: Writings with identical contents made by When original document is unavailable (Bar 2000)
printing, mimeographing, lithography and other
similar methods executed at the same time are When the original document has been lost or destroyed,
considered as original document. Thus, each or cannot be produced in court, the offeror, upon proof
newspaper sold in the stand is an original in itself of its execution or existence and the cause of its
(Riano, 2013). unavailability without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in some
Q: When Anna loaned a sum of money to Blair, Anna authentic document, or by the testimony of witnesses in
typed a single copy of the promissory note, which the order stated (Sec. 5, Rule 130)
they both signed. Anna made two photocopies of the
promissory note, giving one copy to Blair and Requisites before the contents of the original
retaining the other copy. Anna entrusted the document may be proved by secondary evidence
typewritten copy to his counsel for safekeeping. The (laying the basis/laying the predicate)
copy with Anna's counsel was destroyed when the
law office was burned. The offeror must prove the following:
1. In an action to collect on the promissory note, 1. Execution or existence of the original document;
which is deemed to be the "original" copy for the 2. The cause of its unavailability; and
purpose of the best evidence rule? 3. The unavailability of the original is not due to bad
2. Can the photocopies in the hands of the parties faith on his part(Sec. 5, Rule 130).
be considered "duplicate original copies"?
3. As counsel for Anna, how will you prove the loan NOTE: Accordingly, the correct order of proof is as
given by Anna to Blair? (1997 Bar Question) follows: existence, execution, loss, and contents. This
A: order may be changed if necessary at the sound
1. The copy that was signed and lost is the only discretion of the court (Citibank, N.A. Mastercard v.
"original" copy for purposes of the best evidence Teodoro, G.R. No. 150905, September 23, 2003).
rule (Sec. 4 (b), Rule 130).
2. No, because they are merely photocopies which Due execution of the document
were not signed (Mahilum v. CA, G.R. No. L-17970,
July 10, 1966). They constitute secondary evidence It may be proved through the testimony of:
(Sec. 5, Rule 130). 1. The person who executed it;
3. It may be proved by secondary evidence through the 2. The person before whom its execution was
photocopies of the promissory note. When the acknowledged;
original document is lost or destroyed, or cannot be 3. Any person who was present and saw it executed
produced in court, the offeror, upon proof of its and delivered;
execution or existence and the cause of its 4. Any person who thereafter saw and recognized the
unavailability without bad faith on his part, may signature;
prove its contents by a copy, or by a recital of its 5. One to whom the parties, thereto had previously
contents in some authentic document, or by the confessed the execution thereof; or
testimony of witnesses in the order stated (Sec. 5, 6. By evidence of the genuineness of the signature or
Rule 130). handwriting of the maker (Sec. 20, Rule 132).

REQUISITES FOR INTRODUCTION NOTE: The promissory note is an actionable document

OF SECONDARY EVIDENCE and the original or a copy thereof should have been
attached to the complaint (Sec. 7, Rule 8). In such a case,
Secondary evidence the genuineness and due execution of the note, if not
denied under oath, would be deemed admitted (Sec. 8,
It refers to evidence other than the original instrument Rule 9).
or document itself. It is the class of evidence that is
relevant to the fact in issue, it being first shown that the Intentional destruction of original document
primary evidence of the fact is not obtainable. It
performs the same functions as that of primary evidence Intentional destruction of the originals by a party who
(EDSA Shangri-La Hotel and Resort, Inc. v. BF Corporation, acted in good faith does not preclude the introduction of
G.R. Nos. 145842 & 145873, June 27, 2008; Francisco, secondary evidence of the contents thereof (Regalado,
1992). 2008).

NOTE: All duplicates or counterparts of such document Proof of loss or destruction

must first be accounted before one can resort to
secondary evidence. It must appear that all of them have It may be proved by:
been lost or destroyed or cannot be produced in court. 1. Any person who knew of such fact;
The non-production of the original document, unless it

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 EVIDENCE
2. Anyone who, in the judgment of the court, had made
sufficient examination in the places where the Waiver of the presentation or offer of the original
document or papers of similar character are usually
kept by the person in whose custody the document The presentation or offer of the original may be waived
was and has been unable to find it; or upon failure to object by the party against whom the
3. Any person who has made any other investigation secondary evidence is offered when the same was
which is sufficient to satisfy the court that the presented, as the secondary evidence becomes primary
document is indeed lost. evidence. But even if admitted as primary evidence, its
probative value must still meet the various tests by
NOTE: A reasonable probability of its loss is sufficient, which its reliability is to be determined. Its tendency to
and this may be shown by a bona fide and diligent search, convince and persuade must be considered for
fruitlessly made, in places where it is likely to be found admissibility of evidence should not be confused with its
(Paylago v. Jarabe, G.R. No. L-20046, March 27, 1968). probative value (Heirs of Teodoro De la Cruz v. CA, G.R.
No. 117384, October 21, 1998).
All duplicates or counterparts of a lost or destroyed
document must be accounted for before using copies When original document is in adverse party’s
thereof since all duplicates are parts of the writing to be custody or control
proved (De Vera, et al. v. Aguilar, et al., G.R. No. 83377,
February 9, 1993). If the document is in the custody or under the control of
adverse party, he must have reasonable notice to
While a marriage certificate is considered the primary produce it. If after such notice and after satisfactory
evidence of a marital union, it is not regarded as the sole proof of its existence, he fails to produce the document,
and exclusive evidence of marriage. Jurisprudence secondary evidence may be presented as in the case of
teaches that the fact of marriage may be proven by its loss (Sec. 6, Rule 130).
relevant evidence other than the marriage certificate.
Hence, even a person’s birth certificate may be Requisites in order that secondary evidence may be
recognized as competent evidence of marriage between admitted when the original document is in the
parents (Vda. De Avenido vs. Avenido, G.R. No. 173540, custody or control of the adverse party
January 22, 2014).
1. Satisfactory proof of existence of original document
Order of presentation of secondary evidence (Sec. 6, Rule 130);
2. The original is in the possession or under the
Upon proof of its execution and loss of the original control of the opponent;
document, its contents may be proved by: 3. Demand or notice is made to him by the proponent
1. Copy of the original; signifying that the document is needed;
2. Recital of the contents of the document in some
authentic document; or NOTE: No particular form of notice is required, to
3. By the testimony of witnesses (Sec. 5, Rule 130). be given to the adverse party, as long as it fairly
appraises the other party as to what papers are
NOTE: The hierarchy of preferred secondary evidence desired. Even an oral demand in open court for such
must strictly be followed (Riano, 2013). production at a reasonable time thereafter will
suffice. Such notice must, however, be given to the
Who may prove the contents of a document adverse party, or his attorney, even if the document
is in the actual possession of a third person
1. Any person who signed the document; (Regalado, 2008).
2. Any person who read it;
3. Any person who heard when the document was The notice may be in the form of a motion for the
being read; production of the original, or made in an open court
4. Any person who was present when the contents of in the presence of the adverse party, or via a
the document were talked over by the parties to subpoena duces tecum, provided that the party in
such an extent as to give him reasonably full custody of the original has sufficient time to
information of the contents; or produce the same. When such party has the original
5. Any person to whom the parties have stated or of the writing and does not voluntarily offer to
confessed the contents thereof. produce it, secondary evidence may be admitted
(Magdayao v. People G.R. No. 162308, November 7,
Definite Evidentiary Rule 1994).

Where the law specifically provides for the class and 4. Failure or refusal of opponent to produce document
quantum of secondary evidence to establish the contents in court; and
of a document, or bars secondary evidence of a lost
document, such requirement is controlling, e.g. evidence NOTE: A justified refusal or failure of the adverse
of a lost notarial will should consist of a testimony of at party to produce the original document will not give
least two credible witnesses who can clearly and rise to the presumption of suppression of evidence,
distinctly establish its contents (Sec. 6, Rule 76; Regalado, or create an unfavorable inference against him. It
2008).

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only authorizes the presentation of secondary When the original of document is in the custody of public
evidence (Regalado, 2008). officer or is recorded in a public office, its contents may
be proved by a certified copy issued by the public officer
Q: Paula filed a complaint against Lynette for the in custody thereof (Sec. 7, Rule 130).
recovery of a sum of money based on a promissory
note executed by the latter. During the hearing, Proof of the contents if the original document is a
Paula testified that the original note was with public record
Lynette and the latter would not surrender to Paula
the original note which Lynette kept in a place about The contents may be proved by:
one day's trip from where she received the notice to 1. A certified copy issued by the public officer in
produce the note and in spite of such notice to custody thereof (Sec. 7, Rule 130); and
produce the same within 6 hours from receipt of 2. Official publication (Herrera, 1999).
such notice, Lynette failed to do so. Paula presented
a copy of the note which was executed at the same NOTE: Public records are generally not to be removed
time as the original and with identical contents. Over from the places where they are recorded and kept (Sec.
the objection of Lynette, can Paula present a copy of 26, Rule 132). Hence, proof of the contents of a document
the promissory note and have it admitted as valid which forms part of a public record may be done by
evidence in her favor? Why? (Bar 2001) secondary evidence.

A: Yes. Although the failure of Lynette to produce the When a document produced is not offered in
original of the note is excusable since she was not given evidence
reasonable notice, a requirement under the Rules before
secondary evidence may be presented, the copy in If the party who calls for the production of a document
possession of Paula is not a secondary evidence but a does not offer the same in evidence, no unfavorable
duplicate original because it was executed at the same inference may be drawn from such failure. This is
time as the original and with identical contents. Hence, because a party who calls for the production of a
being the best evidence, the rule on secondary evidence document is not required to offer it (Sec. 8, Rule 130).
need not be complied with (Sec. 6, Rule 130).
Production of documents under Sec. 8, Rule 130 vs.
When the original consists of numerous accounts Rule 27 (mode of discovery)

When the production of the original writings and their Sec. 8, Rule 130 Rule 27
examination in court would result in great loss of time Procured by mere notice The production of
considering that the evidence desired from the to the adverse party, document is in the nature
voluminous accounts is only the general result of the which is a condition of a mode of discovery and
whole (Sec. 3(c), Rule 130). precedent for the can be sought only by
subsequent introduction of proper motion in the trial
NOTE: A witness may be allowed to offer a summary of a secondary evidence by the court and is permitted
number of documents, or summary of the contents may proponent. only upon good cause
be admitted if documents are so voluminous and shown.
intricate as to make an examination of all of them
impracticable. They may also be presented in the form of Presupposes that the Contemplates a situation
charts or calculations (Riano, 2013). document to be produced wherein the document is
is intended as evidence for either assumed to be
Requisites for the admissibility of secondary the proponent who is favorable to the party in
evidence when the original consists of numerous presumed to have possession thereof or that
accounts knowledge of its contents. the party seeking its
production is not
1. The original must consist of numerous accounts or sufficiently informed of the
other documents; contents of the same.
2. They cannot be examined in court without great loss
of time; and RULES ON ELECTRONIC EVIDENCE
3. The fact sought to be established from them is only (A.M. No. 01-7-01-SC)
the general result of the whole (Sec. 3(c), Rule 130).
SCOPE; COVERAGE; MEANING OF ELECTRONIC
NOTE: Voluminous records must be made accessible to EVIDENCE; ELECTRONIC DATA MESSAGE
the adverse party so that the correctness of the summary
of the voluminous records may be tested on cross- Scope of Rules on Electronic Evidence
examination (Compaña Maritima v. Allied Free Workers
Union, et al., G.R. No. L-28999, May 24, 1977). It shall apply to all civil actions and proceedings, as well
as quasi-judicial and administrative cases (Sec. 2, Rule 1).
When original document is a public record (Bar
2000) NOTE: The SC issued a resolution on September 24,
2002, which took effect on October 14, 2002, to include

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 EVIDENCE
criminal proceedings in the coverage of A.M. No. 01-7-
01-SC. Facsimile transmission not considered as electronic
evidence
In the case of Ang v. Court of Appeals, G.R. No. 182835,
April 20, 2010, it held that the Rules on Electronic A facsimile transmission may not be considered as
Evidence is not applicable to criminal actions. However, electronic evidence. In enacting R.A. 8792 (E-Commerce
the RTC decided the case in 2001. Thus, following the Act of 2000), Congress intended virtual or paperless
maxim that laws and rules should be interpreted in favor writings to be the functional equivalent and to have the
of the accused, the SC did not apply the amendment same legal function as paper-based documents. The
which took effect on October 2002. terms “electronic data message” and “electronic
document,” as defined under R.A. 8792, do not include a
On the other hand, in the case of People of the Philippines facsimile transmission. Accordingly, a facsimile
v. Noel Enojas, G.R. No. 204894, March 10, 2014, it was transmission cannot be considered as electronic evidence.
held that the RTC was in conformity in applying the It is not the functional equivalent of an original under the
Court’s Resolution applying the Rules on Electronic best evidence rule and is not admissible as electronic
Evidence to criminal actions. evidence (MCC Industrial Sales Corporation v. Sangyong
Corp., G.R. No. 170633, October 17, 2007).
Note: An electronic document is admissible in evidence
if it complies with the rules on admissibility prescribed PROBATIVE VALUE OF ELECTRONIC DOCUMENTS OR
by the Rules of Court and related laws and is EVIDENTIARY WEIGHT; METHOD OF PROOF
authenticated in the manner prescribed by these Rules
(Rule 5, Sec. 2) (Bar 2003, 2009) Admissibility of electronic evidence

Electronic Evidence An electronic document is admissible in evidence if it

complies with the rules on admissibility prescribed by
It is information stored in electronic form that is relevant the Rules of Court and related laws and is authenticated
to the issues in a particular litigation (Overly, 2002). in the manner prescribed by these Rules (Sec. 2, Rule 3).
NOTE: The authenticity of any private electronic
Evidence is "any species of proof, or probative matter, document must be proved by evidence that it had been
legally presented at the trial of an issue, by the act of the digitally signed and other appropriate security measures
parties and through the medium of witnesses, records, have been applied (Sec. 2, Rule 5).
documents, exhibits, concrete objects, etc. for the
purpose of inducing belief in the minds of the court or Proof of electronic documents
jury as to their contention." Electronic information (like
paper) generally is admissible into evidence in a legal Matters relating to the admissibility and evidentiary
proceeding (Black’s Law Dictionary). weight of an electronic document may be established by
an affidavit stating facts of direct personal knowledge of
Electronic Document (Bar 2003, 2009) the affiant or based on authentic records. The affidavit
must affirmatively show the competence of the affiant to
Refers to information or the representation of testify on the matters contained therein (Sec. 1, Rule 9).
information, data, figures, symbols or other modes of
written expression, described or however represented, Factors to be considered in assessing evidentiary
by which a right is established or an obligation weight of an electronic document (INFO2M)
extinguished, or by which a fact may be proved and
affirmed, which is received, recorded, transmitted, 1. The reliability of the manner or method in which it
stored, processed, retrieved or produced electronically. was generated, stored or communicated, including
It includes digitally signed documents and any print-out but not limited to input and output procedures,
or output, readable by sight or other means, which controls, tests and checks for accuracy and
accurately reflects the electronic data message or reliability of the electronic data message or
electronic document (Sec. 1(h), Rule 2). document, in the light of all the circumstances as
well as any relevant agreement;
NOTE: Whenever a rule of evidence refers to the term 2. The reliability of the manner in which its originator
writing, document, record, instrument, memorandum or was identified;
any other form of writing, such term shall be deemed to 3. The integrity of the information and communication
include an electronic document as defined in these Rules system in which it is recorded or stored, including
(Sec. 1, Rule 3). but not limited to the hardware and computer
programs or software used as well as programming
Electronic documents are the functional equivalents of errors;
paper-based documents (Ibid.). 4. The familiarity of the witness or the person who
made the entry with the communication and
Electronic Data Message information system;
5. The nature and quality of the information which
Electronic data message refers to information generated, went into the communication and information
sent, received or stored by electronic, optical or similar system upon which the electronic data message
means (Sec.1 (g), Rule 2). document was based; or

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6. Other factors which the court may consider as Supreme Court or by law for authentication of
affecting accuracy or integrity of the electronic electronic documents were applied to the
document or electronic data message (Sec. 1, Rule 7). document; or
3. By other evidence showing its integrity and
Original of an Electronic Document (Bar 2003) reliability to the satisfaction of the judge (Sec. 2, Rule
5).
An electronic document shall be regarded as the
equivalent of an original document under the Best NOTE: Sec. 2 of Rule 5 applies only when the document
Evidence Rule if it is a printout or output readable by is a private electronic document and the same is offered
sight or other means, shown to reflect the data as an authentic document. If the electronic document is
accurately (Sec. 1, Rule 4). 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
Q: When is electronic evidence regarded as being the of Rule 5 finds no relevance (Riano, 2013).
equivalent of an original document under the best
evidence rule? (2003 Bar Question) Authentication of electronic or digital signature

A: If it is a printout or output readable by sight or other 1. By evidence that a method or process was utilized
means, shown to reflect the data accurately (Sec. 1, Rule to establish a digital signature and verify the same;
4).As to copies equivalent of the originals, electronic 2. By any other means provided by law; or
evidence is an original document when it is: 3. By any other means satisfactory to the judge as
1. In 2 or more copies executed at or about the same establishing the genuineness of the electronic
time with identical contents; signature (Sec. 2, Rule 6).
2. A counterpart produced by the same impression as
the original; Effect of authentication of an electronic signature
3. From the same matrix;
4. By mechanical or electronic re-recording; Upon authentication, it shall be presumed that:
5. By chemical reproduction; or 1. The electronic signature is that of the person to
6. By other equivalent techniques which accurately whom it correlates;
reproduces the original (Sec. 2, Rule 4). 2. The electronic signature was affixed by that person
with the intention of authenticating or approving
Notwithstanding the foregoing, copies or duplicates shall the electronic document to which it is related or to
not be admissible to the same extent as the original if: indicate such person’s consent to the transaction
1. A genuine question is raised as to the authenticity of embodied therein; and
the original; or 3. The methods or processes utilized to affix or verify
2. In the circumstances it would be unjust or the electronic signature operated without error or
inequitable to admit a copy in lieu of the original fault (Sec. 3, Rule 6).
(Sec. 2, Rule 4).
Effect of authentication of digital signatures
NOTE: In all matters not specifically covered by the rules
on evidence, the Rules of Court and pertinent provisions Upon authentication, it shall be presumed that:
of statutes containing rules on evidence shall apply. Thus 1. The information contained in a certificate is correct;
the confidential character of a privileged communication 2. The digital signature was created during the
is not lost solely on the ground that it is in the form of an operational period of a certificate;
electronic document (Sec. 3, Rule 3). 3. No cause exists to render a certificate invalid or
revocable;
AUTHENTICATION OF ELECTRONIC DOCUMENTS 4. The message associated with a digital signature has
AND ELECTRONIC SIGNATURES not been altered from the time it was signed; and
5. A certificate had been issued by the certification
Burden of Proof authority indicated therein (Sec. 4, Rule 6).

The person seeking to introduce an electronic document ELECTRONIC DOCUMENTS

in any legal proceeding has the burden of proving its vis-a-vis THE HEARSAY RULE
authenticity in the manner provided in this Rule (Sec. 1,
Rule 5). Inapplicability of the Hearsay Rule

Authentication of an electronic document (Bar 2003) A memorandum, report, record or data compilation of
acts, events, conditions, opinions, or diagnoses, made by
Before any private document offered as authentic is electronic, optical or other similar means at or near the
received in evidence, its authenticity must be proved by time of or from transmission or supply of information by
any of the following means: a person with knowledge thereof, and kept in the regular
course or conduct of a business activity, and such was
1. By evidence that it had been digitally signed by the the regular practice to make the memorandum, report,
person purported to have signed the same; record, or data compilation by electronic, optical or
2. By evidence that other appropriate security similar means, all of which are shown by the testimony
procedures or devices as may be authorized by the

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 EVIDENCE
of the custodian or other qualified witnesses, is excepted
from the rule on hearsay evidence (Sec. 1, Rule 8). NOTE: Among the evidentiary rules, it is the parol
evidence rule that has direct application to the law on
NOTE: The presumption provided by the rules may be contracts. The rule applies only to contracts which the
overcome by evidence of the untrustworthiness of the parties have decided to set forth in writing. Hence, parol
source of information or the method or circumstances of evidence does not apply to oral contracts (Riano, 2013).
the preparation, transmission or storage thereof (Sec. 2,
Rule 8). Parol evidence

AUDIO, PHOTOGRAPHIC, VIDEO It is any evidence aliunde (extrinsic evidence) which is

AND EPHEMERAL EVIDENCE intended or tends to vary or contradict a complete and
enforceable agreement embodied in a document
Ephemeral electronic communication (Regalado, 2008). It may refer to testimonial, real or
documentary evidence.
It refers to telephone conversations, text messages, chat
room sessions, streaming audio, streaming video, and NOTE: Parol evidence is evidence outside of the
other electronic forms of communication the evidence of agreement of the parties while the parol evidence rule
which is not recorded or retained (Sec. 1(k), A.M. No. 01- prevents the presentation of such parol evidence.
7-01-SC).
Rationale for the adoption of the parol evidence rule
It shall be proven by the testimony of a person who was (Bar 2009)
a party to the same or has personal knowledge thereof.
In the absence or unavailability of such witnesses, other It is designed to give certainty to a transaction which has
competent evidence may be admitted. A recording of the been reduced to writing, because written evidence is
telephone conversation or ephemeral electronic much more certain and accurate than that which rests on
communication shall be covered by the immediately fleeting memory only (Francisco, 1992). Spoken words
preceding section. If the foregoing communications are could be notoriously undesirable unlike a written
recorded or embodied in an electronic document, then contract which speaks of a uniform language (Ortañez v.
the provisions of Rule 5 regarding Authentication of Court of Appeals, G.R. No. 107372, January 23, 1997)
Electronic Documents shall apply (Sec. 2, Rule 11, Ibid.). Moreover, itgives stability to written statements,
removes the temptation and possibility of perjury and
Audio, photographic or video evidence prevents possible fraud.

Audio, photographic and video evidence of events, acts Condition precedent and a condition subsequent
or transactions shall be admissible provided it shall be established by parol evidence
shown, presented or displayed to the court and shall be
identified, explained or authenticated by the person who Condition precedent may be established by parol
made the recording or by some other person competent evidence because there is no varying of the terms of the
to testify on the accuracy thereof (Sec. 1, Rule 11, Ibid.). written contract by extrinsic agreement for the reason
that there is no contract in existence. There is nothing in
Text messages which to apply the excluding rule. Conditions subsequent
may not be established by parol evidence since a written
Text messages have been classified as ephemeral contract already exists.
electronic communication under Section 1(k), Rule 2 of
the Rules on Electronic Evidence, and shall be proven by NOTE: The present rule now requires that the
the testimony of a person who was a party to the same or admissibility of subsequent agreements be conditioned
has personal knowledge thereof (Vidallon-Magtolis v. upon its being put in issue (Sec 9(d), rule 130).
Cielito Salud, A.M. No. CA-05-20-P, September 9, 2005).
APPLICATION OF THE PAROL EVIDENCE RULE
Purposes of presentation of electronic document
Requisites for the application of the parol evidence
Electronic document may be presented for the following rule
purposes:
1. To establish a right; 1. There must be a valid contract;
2. To establish an obligation; 2. The terms of the agreement must be reduced to
3. To prove or affirm a fact. writing. “Agreement” includes wills;
3. The dispute is between the parties or their
PAROL EVIDENCE RULE successors-in-interest; and
4. There is dispute as to the terms of the agreement.
When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms Parties should be privies to the contract
agreed upon and there can be, between the parties and
their successors-in-interest, no evidence of such terms The parol evidence rule does not apply, and may not be
other than the contents of the written agreement (Sec. 9, properly invoked by either party to the litigation against
Rule 130). the other, where at least one party to the suit is not a

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party or privy of a party to the written instrument in Where the Where the Use of terms
question and does not base a claim or assert a right document refers contract refers such as “dollars”
originating in the instrument of the relation established to a particular to an “tons” and
thereby. Thus, if one of the parties to the case is a person or thing unidentified “ounces”
complete stranger to the contract involved therein, he is but there are grantee or does
not bound by this rule and can introduce extrinsic two or more not particularly
evidence against the efficacy of the writing (Lechugas v. persons having identify the
CA, et al., G.R. Nos. L-39972 & L-40300, August 6, 1986). the same name subject matter
or two or more thereof such
Application of the rule to wills things to which that, in either
the description case the text
The Parol evidence rule applies to contractual in the writing does not disclose
obligations. However, the term “agreement” includes may apply who are or what
wills. Therefore, there can be no evidence of the terms of is referred to
the will other than the contents of the will itself (Riano,
2013). Mistake

NOTE: While parol evidence applies to wills, an express The mistake contemplated is one which is a mistake of
trust concerning an immovable or any interest therein fact mutual to both parties (Bernardo, 2008, citing
may not be proved by parol evidence (Art. 1443, Civil Gurango vs. IAC, g.r. No. 75290, November 4, 1992).Parol
Code of the Philippines). evidence may only be allowed, if any of the foregoing
matters is put in issue in the pleadings.
WHEN PAROL EVIDENCE CAN BE INTRODUCED
Failure of the written agreement to express true
Exceptions to Parol Evidence Rule intent of the parties

A party may present evidence to modify, explain or add Parol evidence may be admitted to show the true
to the terms of the written agreement if he puts in issue in consideration of the contract, or the want or illegality
his pleadingsthe following: (IF-VE) thereof, or the incapacity of the parties, or the fact that
the contract was fictitious or absolutely simulated, or
1. An intrinsic ambiguity, mistake or imperfection in that there was fraud in inducement (Regalado, 2008).
the written agreement; Despite the meeting of the minds, the true agreement of
2. Failure of the written agreement to express the true the parties is not reflected in the instrument. (Riano,
intent of the parties thereto; (Bar 2001) 2013).
3. Validity of the written agreement; or
4. Existence of other terms agreed to by the parties or NOTE: In an action for reformation of instrument under
their successors in interest after the execution of the Art. 1359 of the Civil Code of the Philippines, the plaintiff
written agreement (Sec. 9, Rule 130). may introduce parol evidence to show the real intention
of the parties. An action for reformation presupposes
Kinds of ambiguities that a meeting of the minds exists between the parties,
i.e, there is a contract between them although the
Intrinsic or Extrinsic or Intermediate instrument that evidences the contract does not reflect
Latent Patent the true agreement of the parties by reason of, for
On its face, the Ambiguity is Ambiguity instance, fraud or mistake (Riano, 2013).
writing appears apparent on the consists in the
clear and face of the use of equivocal Q: Paula filed a complaint against Lynette for the
unambiguous writing and words recovery of a sum of money based on a promissory
but there are requires that susceptible of note executed by the latter. Paula alleged in her
collateral something be two or more complaint that although the promissory note says
matters which added to make interpretation that it is payable within 120 days, the truth is that
make the the meaning the note is payable immediately after 90 days but
meaning certain that if Paula is willing, she may, upon request of
uncertain Lynette give the latter up to 120 days to pay the note.
Curable by Cannot be cured Curable by During the hearing, Paula testified that the truth is
evidence aliunde by evidence evidence aliunde that the agreement between her and Lynette is for
aliunde because the latter to pay immediately after 90 days time.
it is only Also, since the original note was with Lynette and the
intrinsic latter would not surrender to Paula the original note
ambiguity not which Lynette kept in a place about one day's trip
extrinsic from where she received the notice to produce the
ambiguity which note and in spite of such notice to produce the same
serves as an within 6 hours from receipt of such notice, Lynette
exception to the failed to do so. Paula presented a copy of the note
parol evidence which was executed at the same time as the original
rule and with identical contents. Over the objection of

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 EVIDENCE
Lynette, will Paula be allowed to testify as to the true consideration is no guarantee of how exactly the parol
agreement or contents of the promissory note? Why? evidence adduced shall be appreciated by the court. They
(Bar 2001) do not guarantee the probative value, if any, that shall be
attached to them. (Paras v. Kimwa Construction and
A: Yes. As an exception to the parol evidence rule, a Development Corp., G.R. No. 171601, April 8, 2015).
party may present evidence to modify, explain or add to
the terms of the written agreement if he puts in issue in AUTHENTICATION
his pleading the failure of the written agreement to AND PROOF OF DOCUMENTS
express the true intent and agreement of the parties
thereto. Here, Paula has alleged in her complaint that the MEANING OF AUTHENTICATION
promissory note does not express the true intent and
agreement of the parties. The parol evidence rule may be It is the process of proving the due execution and
admitted to show the true consideration of the contract genuineness of a document.
(Sec. 4(b), Rule 130).
When authentication is NOT required
DISTINCTIONS BETWEEN
THE PAROL EVIDENCE RULE 1. The writing is an ancient document (Sec. 21, Rule
AND THE BEST EVIDENCE RULE 132);
2. The writing is a public document or record (Sec. 19,
Parol Evidence Rule Best Evidence Rule Rule 132);
Presupposes that the The original document is
original document is not available or there is a NOTE: A private document required by law to be
available in court dispute as to whether said recorded, while it is transformed into a public
writing is original document by the “public record” thereof, is not
included in this enumeration. Such recording does
Prohibits the varying of the Prohibits the introduction not make the private writing itself a public
terms of a written of secondary evidence in document so as to make it admissible without
agreement lieu of the original authentication, i.e. birth certificate recorded in the
document regardless of NSO is a public record, but it is still a private
whether or not it varies the document.
contents of the original
3. The writing is a notarial document acknowledged,
Applies only to documents Applies to all kinds of proved or certified (Sec. 30, Rule 132);
which are contractual in writings 4. The authenticity and due execution of the document
nature including wills has been expressly admitted or impliedly admitted
by failure to deny the same under oath; or
Can be invoked only when Can be invoked by any 5. When such genuineness and due execution are
the controversy is between party to an action whether immaterial to the issue.
the parties to the written or not he has participated
agreement, their privies, or in the writing involved PUBLIC AND PRIVATE DOCUMENTS
any party affected thereby
like a cestui que trust Public Document Private Document
What comprises it
Waiver of the parol evidence rule 1. The written official All other writings are
acts, or records of the private (Sec. 19, Rule 132).
Failure to invoke the benefits of the rule constitutes as official acts of the
waiver of the rule. Inadmissible evidence may be sovereign authority,
rendered admissible by failure to object (Riano, 2013). official bodies and
tribunals, and public
Probative value officers, whether of
the Philippines, or of a
NOTE: However, even if the parol evidence is admitted, it foreign country;
does not mean that the court would give probative value 2. Documents
to the parol evidence. Admissibility is not the equivalent acknowledged before
of probative value or credibility (Riano, 2013). a notary public except
last wills and
Considering the agreement’s mistake, imperfection or testaments; and
supposed failure to express the parties’ true intent was 3. Public records, kept in
successfully put in issue in the complaint, this case falls the Philippines, of
under the exceptions provided by Sec 9, Rule 130. private documents
Accordingly, the testimonial and documentary parol required by law to be
evidence sought to be introduced, which attest to these entered therein
supposed flaws and what they aver to have been the (Sec. 19, Rule 132).
parties’ true intent, may be admitted and considered.
However, this admission and availability for

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As to authenticity and admissibility as evidence be determined by a visual comparison of specimens of

Admissible as evidence Before any private the questioned signatures with those of the currently
without need of further document offered as existing ones (Pontaoe v. Pontaoe, G.R. Nos. 159585 &
proof of its genuineness authentic is received in 165318, April 22, 2008).
and due execution evidence, its due execution
and authenticity must first WHEN EVIDENCE OF AUTHENTICITY OF A PRIVATE
be proved. WRITING IS NOT REQUIRED
(ANCIENT DOCUMENTS)
As to persons bound
Evidence even against Binds only the parties who 1. The writing is an ancient document (Sec. 21, Rule
third persons, of the fact executed them or their 132);
which gave rise to its due privies, insofar as due 2. The authenticity and due execution of the document
execution and to the date execution and date of the has been expressly admitted or impliedly admitted
of the latter document are concerned by failure to deny the same under oath;
3. When such genuineness and due execution are
As to validity of certain transactions immaterial to the issue.
Certain transactions must
be contained in a public Requisites of ancient document/authentic document
document; otherwise they rule
will not be given any
validity. 1. That the private document be more than 30 years
old;
NOTE: Church registries of births, marriages and deaths 2. That it be produced from a custody in which it
are not no longer public writings nor are they kept by would naturally be found if genuine; and
duly authorized public officials. They are private 3. That it is unblemished by any alteration or
writings and their authenticity must therefore be proved, circumstances of suspicion (Sec. 21, Rule 132).
as are all other private writings in accordance with the
rules (Llemos v. Llemos, G.R. No. 150162, January 26, NOTE: This rule applies only if there are no other
2007). witnesses to determine authenticity.

WHEN A PRIVATE WRITING HOW TO PROVE GENUINENESS

REQUIRES AUTHENTICATION; OF A HANDWRITING
PROOF OF A PRIVATE WRITING
1. It may be proved by any witness who actually saw
Who may prove the due execution and authenticity the person writing the instrument;
of private documents 2. By any person who is familiar or has acquired
1. By anyone who saw the document executed or knowledge of the handwriting of such person, his
written; or opinion as to the handwriting being an exception to
2. By evidence of the genuineness of the signature or the opinion rule under Secs. 48 & 50 of Rule 130;
handwriting of the maker. 3. By a comparison of the questioned handwriting
from the admitted genuine specimens thereof; or
Any other private document need only be identified as 4. By expert witness (Secs. 20 & 22, Rule 132; Sec. 49,
that which it is claimed to be, i.e. ancient documents. Rule 130).

NOTE: In addition to the modes of authenticating a NOTE: Sec. 22 of Rule 132 merely enumerates the
private document under Sec. 20, Rule 132, American methods of proving handwriting but does not give
Jurisprudence also recognizes the doctrine of self- preference or priority to a particular method (Lopez v.
authentication – where the facts in writing could only CA, et al., G.R. No. L-31494, January 23, 1978).
have been known by the writer; and the rule of
authentication by the adverse party – where the reply of PUBLIC DOCUMENTS AS EVIDENCE;
the adverse party refers to and affirms the sending to PROOF OF OFFICIAL RECORD
him and his receipt of the letter in question, a copy of
which the proponent is offering as evidence (Regalado, Proof of public records
2008).
Written official acts, or records of the official acts of the
The testimony of a handwriting expert is not sovereign authority, official bodies and tribunals, and
indispensable to the examination or the comparison of public officers, e.g. a written foreign law, may be
handwritings in cases of forgery. A finding of forgery evidenced by:
does not depend entirely on the testimonies of 1. If it is within the Philippines:
handwriting experts, because the judge must conduct an a. An official publication thereof; or
examination of the questioned signature in order to b. By a copy attested by the officer having the
arrive at a reasonable conclusion as to its authenticity. legal custody of the record, or by his deputy.
The opinions of handwriting experts are not binding
upon courts, especially when the question involved is 2. If it is kept in a foreign country:
mere handwriting similarity or dissimilarity, which can a. An official publication thereof; or

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 EVIDENCE
b. By a copy attested by the officer having the PUBLIC RECORD OF A PUBLIC DOCUMENT
legal custody of the record or by his deputy and
accompanied with a certificate that such officer Proof of public record of a private document
has the custody. The certificate may be made by
a secretary of the embassy or legation, consul 1. By the original record; or
general, consul, vice consul, or consular agent 2. By a copy thereof, attested by the legal custodian of
or by any officer in the foreign service of the the record, with an appropriate certificate that such
Philippines stationed in the foreign country in officer has the custody (Sec. 27, Rule 132).
which the record is kept, and authenticated by
the seal of his office (Sec. 24, Rule 132). (Bar PROOF OF LACK OF RECORD
2009)
Proof of lack of record of a document consists of written
NOTE: Upon failure to comply with the above- statement signed by an officer having custody of an
mentioned requirements, courts will apply the official record or by his deputy. The written statement
doctrine of processual presumption. must contain the following matters:

Inspection of Public Record 1. There has been a diligent search of the record;
2. That despite the diligent search, no record of entry
GR: Any public record must not be removed from the of a specified tenor is found to exist in the records of
office in which it is kept. his office.

XPN: Upon order of a court where the inspection of the NOTE: The written statement must be accompanied by a
record is essential to the just determination of a pending certificate that such officer has the custody of official
case (Sec. 26, Rule 132). records (Sec. 28, Rule 132). (Bar 2003)

Probative value of documents consisting of entries in HOW A JUDICIAL RECORD IS IMPEACHED

public records
Impeachment of a judicial record: (WCF) (Bar 2009)
They are prima facie evidence of the facts stated therein
if entered by a public officer in the performance of a 1. Want of jurisdiction in the court or judicial officer;
duty. All other public documents are evidence, even 2. Collusion between the parties (e.g. legal separation,
against a third person, of the fact which gave rise to their annulment cases); or
execution and of the date of the latter (Sec. 23, Rule 132). 3. Fraud in the party offering the record, in respect to
the proceedings (Sec. 29, Rule 132).
NOTE: A special power of attorney executed and
acknowledged before a notary public in a foreign country NOTE: Fraud refers to extrinsic fraud, which is a ground
authorizing a person to file a suit against certain persons for annulment of judgment.
in the Philippines is not admissible in evidence because a
notary public in a foreign country is not one of those who Q: Lino was charged with illegal possession of
can issue the certificate mentioned in Sec. 24, Rule 132 of firearm. During trial, the prosecution presented in
Rules of Court. Non-compliance with the said rule will evidence a certification of the PNP Firearms and
render the SPA inadmissible in evidence. Not being duly Explosives Office attesting that the accused had no
established in evidence, the SPA cannot be used to file a license to carry any firearm. The certifying officer,
suit in representation of another. The failure to have the however, was not presented as a witness. Is the
SPA authenticated is not a mere technicality but a certification of the PNP Firearm and Explosives
question of jurisdiction (Heirs of Medina v. Natividad, G.R. Office without the certifying officer testifying on it
No. 177505, November 27, 2008). admissible in evidence against Lino? (Bar 2003)

ATTESTATION OF A COPY A: Yes. Section 28, Rule 130 provides that “a written
statement signed by an officer having the custody of an
Whenever a copy of a document or record is attested for official record or by his deputy that after diligent search,
the purpose of evidence, the attestation must state, in no record or entry of a specified tenor is found to exist in
substance: the records of his office, accompanied by a certificate as
1. That the copy is a correct copy of the original, or a above provided, is admissible as evidence that the
specific part thereof, as the case may be; records of his office contain no such record or entry.”
2. It must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court The records of the PNP Firearm and Explosives Office are
having a seal, under the seal of such court (Sec. 25, a public record. Hence, notwithstanding that the
Rule 132). certifying officer was not presented as a witness for the
prosecution, the certification he made is admissible in
evidence against Lino (Sec. 28, Rule 130; Mallari v. Court
of Appeals, G.R. No. 110569, December 9, 1996; Valeroso v.
People, G.R. No. 164815, February 22, 2008).

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PROOF OF NOTARIAL DOCUMENTS DOCUMENTARY EVIDENCE
IN AN UNOFFICIAL LANGUAGE
Notarial documents
Documents written in an unofficial language shall not be
Documents acknowledged before a notary public is admitted as evidence unless accompanied with a
considered a public document and enjoys a presumption translation into English or Filipino (Sec. 33, Rule 132).
of regularity.
TESTIMONIAL EVIDENCE
The document may be presented in evidence without
further proof, the certificate of acknowledgment being It is sometimes called viva voce evidence which literally
prima facie evidence of the execution of the instrument means “living voice” or by word of mouth. In this kind of
or document involved (Sec. 30, Rule 132). evidence, a human being (witness) is called to the stand,
is asked questions, and answers the question asked of
NOTE: The identification documents which may be him (Riano, 2013).
presented as “competent evidence of identity” by
signatories to documents or instruments to be notarized QUALIFICATIONS OF A WITNESS
include, but are not limited to: passports, driver’s
licenses, Professional Regulations Commission Except as provided in the next succeeding section, all
identification cards, NBI clearances, police clearances, persons who can perceive, and perceiving, can make
postal IDs, voter’s IDs, Barangay certifications, GSIS e- their known perception to others, may be witnesses (Sec.
cards, SSS cards, Philhealth cards, senior citizen’s cards, 20, Rule 130).
Overseas Workers Welfare Administration (OWWA) IDs,
OFW IDs, seaman’s books, alien certificate of NOTE: Religious or political belief, interest in the
registrations/immigrant certificate of registrations, outcome of the case, or conviction of a crime unless
government office IDs, certifications from the National otherwise provided by law, shall not be ground for
Council for the Welfare of Disabled Persons (NCWDP), disqualification (Ibid.).
and DSWD certifications.
NOTE: The number of witnesses does not determine the
Evidentiary weight of a notarial document outcome of the case. The testimonies of witnesses are
weighed and not based on how many. Cases are not won
Notarial documents celebrated with all the legal by the fact that one side has more witnesses than the
requisites under a notarial certificate is evidence of a other. In a case of rape, the Supreme Court has held that
high character, and to overcome its recitals, it is positive identification will prevail over the defense of
incumbent upon the party challenging it to prove his alibi, alibi being considered as a weaker defense since it
claim with clear, convincing and more than mere can be easily fabricated.
preponderant evidence.
Presumption in favor of competence of a witness
A notarized document carries the evidentiary weight
conferred upon it with respect to its due execution, and it Generally, a person who takes the witness stand, is
has in its favor the presumption of regularity which may presumed to be qualified to testify. A party who desires
only be rebutted by evidence so strong and convincing as to question the competence of a witness must do so by
to exclude all controversy as to the falsity of the making an objection as soon as the facts tending to show
certificate. Absent such, the presumption must be incompetency are apparent (Jones on Evidence, Vol. 3, Sec.
upheld. The burden of proof to overcome the 796).
presumption of due execution of a notarial document lies
on the one contesting the same (Pan Pacific Industrial A prospective witness must show that he has the
Sales Co. v. CA, G.R. No. 125283, August 9, 2005). following abilities:
1. To observe – The testimonial quality of perception;
HOW TO EXPLAIN ALTERATIONS 2. To remember – The testimonial quality of memory;
IN A DOCUMENT 3. To relate – The testimonial quality of narration; and
4. To recognize a duty to tell the truth – The testimonial
A party producing a document as genuine which has quality of sincerity (Herrera, 1999).
been altered and appears to have been altered after its
execution must account for the alteration. He may show Time when the witness must possess the
that the alteration: qualifications
1. Was made by another, without his concurrence;
2. Was made with the consent of the parties affected The qualifications and disqualifications of witnesses are
by it; determined as of the time said witnesses are produced
3. Was otherwise properly or innocently made; or for examination in court or at the taking of their
4. That the alteration did not change the meaning or depositions (Regalado, 2008).
language of the instrument.
Who may be witnesses
NOTE: Failure to do at least one of the above will make
the document inadmissible in evidence (Sec. 31, Rule All persons who:
132). 1. Can perceive and in perceiving;

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 EVIDENCE
2. Can make known their perception to others (Sec. 20, incident as an eyewitness would not be expected to
Rule 130); fail to mention; or
2. When the narration in the sworn statement
NOTE: The ability to make known the perception of substantially contradicts the testimony in court.
the witness to the court involves two factors: (a) the
ability to remember what has been perceived; and The point of inquiry is whether the omission is
(b) the ability to communicate the remembered important or substantial (People vs. Calegan, G.R>
perception. It is of common reason to realize that a No. 93846, June 30, 1994).
witness is presented to testify on a matter he has
perceived. If he cannot remember what he Presumption of Competency
perceived, he cannot be a competent witness (Riano,
2013). GR: A person who takes the witness stand is presumed
to possess the qualifications of a witness.
3. Must take either an oath or an affirmation (Sec. 1,
Rule 132; Riano, 2013); and XPNs: There is prima facie evidence of incompetency in
4. Must not possess the disqualifications imposed by the following:
law or the rules (Riano, 2013). 1. The fact that a person has been recently found of
unsound mind by a court of competent jurisdiction;
Oath vis-a-vis Affirmation or
2. That one is an inmate of an asylum for the insane
An oath signifies that he is swearing to the Creator to tell (Torres v. Lopez, 48 Phil. 772).
the truth and nothing but the truth and that if he does
not, he will later on answer for all the lies he is guilty of Credibility of a witness
(Riano, 2013), while an affirmation is a formal
declaration of truth in the absence of swearing to a A testimony must not only come from a credible witness,
Creator. It is a declaration about something to be true. but must be credible in itself, tested by human
experience, observation, common knowledge and
NOTE: The issue which a judge must resolve before a accepted conduct that has evolved through the years
witness is allowed to take the stand is whether the (People vs. Mirandilla Jr., G.R. No. 186417, July 27, 2011).
witness understands the nature of an oath, realizes the
moral duty to tell the truth, and understands the NOTE: Mental unsoundness of the witness at the time
prospects of being punished for a falsehood. A person is the fact to be testified to occurred affects only his
not qualified to be a witness if he is incapable of credibility. Nevertheless, as long as the witness can
understanding the duty to tell the truth (Riano, 2013). convey ideas by words or signs and give sufficiently
intelligent answers to questions propounded, she is a
COMPETENCY vs. CREDIBILITY OF A WITNESS competent witness even if she is feeble-minded or is a
mental retardate or is a schizophrenic (People v.De Jesus,
(2004 Bar Question) G.R. No. L-39087, Apr. 27, 1984; People v. Gerones, G.R. No.
Competency Credibility 91116, Jan. 24, 1991; People v. Baid, G.R. No. 129667, July
of Witness of Witness 31, 2000).
Refers to a witness who Refers to a witness whose
can perceive, and in testimony is believable Findings on the credibility of a witness
perceiving, can make
known his perception to GR: The determination of credibility of witnesses is
others properly within the domain of the trial court as it is in
the best position to observe their demeanor and bodily
Is a matter of law or a Refers to the weight and movements. The findings of the trial court with respect
matter of rule trustworthiness or to the credibility of witnesses and their testimonies are
reliability of the testimony entitled to great respect, and even finality (Llanto v.
It also includes the Alzona, G.R. No. 150730, January 31, 2005).
absence of any of the
disqualifications imposed XPNs:
upon a witness. 1. The lower court has reached conclusions that are
(Riano, 2013) clearly unsupported by evidence; or
2. It has overlooked some facts or circumstances of
NOTE: GR: Discrepancies between the statements of the weight and influence which, if considered, would
affiant in his affidavit and those made by him on the affect the result of the case (People vs. Dalag, G.R. No.
witness stand do not necessarily discredit him because it 129895, April 30, 2003).
is a matter of judicial experience that an affidavit, being
taken ex parte, is almost always incomplete and often DISQUALIFICATIONS OF WITNESSES
inaccurate.
The following are the disqualifications of a witness:
XPN: The credibility of witnesses will be impaired if: 1. Disqualification by reason of mental incapacity or
1. The omission in the affidavit refers to a very immaturity (Sec. 21, Rule 130);
important detail of the incident that one relating the

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2. Disqualification by reason of marriage (Sec. 22, Rule DISQUALIFICATION BY REASON OF
130); MENTAL INCAPACITY OR IMMATURITY
3. Disqualification by reason of death or insanity of (Sec. 21, Rule 130)
adverse party (Sec. 23, Rule 130); and
4. Disqualification by reason of privileged The following persons cannot be witnesses:
communication: 1. Those whose mental condition, at the time of their
a. Marital privilege; production for examination, is such that they are
b. Attorney-client privilege; incapable of intelligently making known their
c. Doctor-patient privilege; perception to others (Sec. 21 (a), Rule 130);
d. Minister-penitent privilege; or
e. Public officer as regards communications made NOTE: Being feeble minded alone is not a sufficient
in official confidence (Sec. 24, Rule 130). ground for a witness to be declared incompetent nor
being a mental retardate. As in the case of other
NOTE: The qualifications and disqualifications of witnesses, acceptance of his testimony depends on its
witnesses are determined as of the time they are nature and credibility or, otherwise put, the quality of his
produced for examination in court or at the taking of the perceptions and the manner he can make them known to
depositions. Blood relationship does not disqualify a the court (People of the Philippines v. De Jesus, G.R. No. L-
witness (Bernardo, 2008, citing Angelo v. CA, G.R. No. 39087, April 27, 1984; People of the Philippines v.
83392, June 26, 1992). Salomon, G.R. No. 96848, January 21, 1994).

Absolute disqualification vs. Relative disqualification 2. Children whose mental maturity is such as to render
them incapable of perceiving the facts respecting
Absolute Relative Disqualification which they are examined and of relating them
Disqualification truthfully (Sec. 21 (b), Rule 130).
The proposed witness is The proposed witness is
prohibited to take the prohibited to testify only When incompetence of the witness by reason of
witness stand on certain matters mental incapacity or immaturity should exist
(Herrera, 1999). specified under Secs. 23
and 24, Rule 130 due to Mental Incapacity Mental Immaturity
interest or relationship, or The incompetence of the The incompetence of the
to privileges of other witness must exist, not at witness must occur at the
parties (Ibid.). the time of his perception time the witness perceives
1. Disqualification by 1. Disqualification by of the facts, but at the time the event including his
reason of mental reason of death or he is produced for incapability to relate his
incapacity or insanity of the adverse examination, and consists perceptions truthfully
immaturity party (Dead Man’s in his inability to (Ibid.).
(Sec. 21, Rule 130). Statute)(Sec. 23, Rule intelligently make known
130) what he has perceived
2. Disqualification by 2. Disqualification by (Riano, 2013).
reason of marriage reason of privileged
(Sec. 22, Rule 130) communication (Sec. Tests considered in determining insanity of a person
24, Rule 130)
1. Test of cognition – complete deprivation of
Conviction of a crime as a ground for disqualification intelligence; and
2. Test of volition - total deprivation of freedom of the
GR: Conviction of a crime is not a ground for will.
disqualification as a witness(Sec. 20, Rule 130).
NOTE: The test of cognition is the applicable test in the
XPNs: Unless otherwise provided by law, such as the Philippines (People vs. Pascual, G.R. No. 95029, March 24,
following: 1993).
1. Those who have been convicted of falsification of a
document, perjury or false testimony are prohibited Q: Cyrus, a deaf-mute, was presented as a witness in
from being witnesses to a will (Art. 821, NCC); a criminal case. The accused objected to the
2. Those who have been convicted of an offense presentation of the testimony of Cyrus on the ground
involving moral turpitude cannot be discharged to that, being a deaf-mute, he was not a competent
become a State witness (Sec. 17, Rule 119; Sec. 10, witness. Is the contention of the accused correct?
R.A. 6981);
3. Those who fall under the disqualification provided A: No. A deaf-mute is not incompetent as a witness. Deaf-
under Secs. 21-24, Rule 130. mutes are competent witnesses where they can:
1. Understand and appreciate the sanctity of an oath;
2. Comprehend facts they are going to testify on; and
3. Communicate their ideas through a qualified
interpreter (People v. Tuangco, G.R. No. 130331,
November 22, 2000).

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 EVIDENCE
DISQUALIFICATION BY REASON OF MARRIAGE Extent of prohibition
(MARITAL DISQUALIFICATION)
(Sec. 22, Rule 130) The prohibition extends not only to a testimony adverse
to the spouse but also to a testimony in favor of the
During their marriage, neither the husband nor the wife spouse. It also extends to both criminal and civil cases
may testify for or against the other without the consent (Riano, 2013), and not only consists of utterances but
of the affected spouse, except in a civil case by one also the production of documents(Riano, 2013, citing
against the other, or in a criminal case for a crime State v. Bramlet, 114 S. C. 389, 103 S.E. 755).
committed by one against the other or the latter’s direct
descendant or descendants (Sec. 22, Rule 130). (Bar Who can claim spousal immunity
2000, 2004, 2006)
The privilege to object may be claimed only by the
Reasons for the rule spouse-party and not the other spouse who is offered as
a witness (Herrera, 1999, citing Ortiz vs. Arambulo, 8 Phil.
The reasons given for the rule are: 98).
1. There is identity of interests between husband and
wife; Testimony where spouse is accused with others
2. If one were to testify for or against the other, there
is consequent danger of perjury; The spouse could testify in a murder case against the
3. The policy of the law is to guard the security and other co-accused, who were jointly tried with the
confidences of private life, even at the risk of an accused-spouse. This testimony cannot, however, be
occasional failure of justice, and to prevent domestic used against accused-spouse directly or through the
disunion and unhappiness; and guise of taking judicial notice of the proceedings in the
4. Where there is want of domestic tranquility there is murder case without violating the marital
danger of punishing one spouse through the hostile disqualification rule, if the testimony is properly
testimony of the other (Alvarez vs. Ramirez, G.R. No. objected (People v. Quidato, Jr., G.R. No. 117401, October
143439, October 14, 2005). 1, 1998).

Requisites for the applicability of spousal immunity Marrying the witness

1. That the spouse for or against whom the testimony An accused can effectively “seal the lips” of a witness by
of the other is offered is a party to the case; marrying the witness. As long as a valid marriage is in
2. That the spouses are legally married (valid until existence at the time of the trial, the witness-spouse
annulled); cannot be compelled to testify – even where the crime
3. That the testimony is offered during the existence of charged is against the witness’ person, and even though
the marriage; and the marriage was entered into for the express purpose of
4. That the case is not one against the other (Herrera, suppressing the testimony (Herrera, 1999, citing [I] A.L.R.
1999). 2d 649).

Exceptions to spousal immunity Testimony by the estranged spouse

1. Consent is given by the party-spouse; Q: Ivy was estranged from her husband Bob for more
2. In a civil case filed by one against the other; than a year due to Bob’s suspicion that she was
3. In a criminal case for a crime committed by one having an affair with Jeff, their neighbor. Ivy was
against the other or the latter’s direct descendants temporarily living with her sister in Pasig City. For
or ascendants (Sec. 22, Rule 130); or unknown reasons, the house of Ivy’s sister was
4. Where the testimony was made after the dissolution burned, killing the latter. Ivy survived. Ivy saw her
of the marriage (Riano, 2013). husband in the vicinity during the incident. Later,
Bob was charged with arson in an Information filed
Waiver of spousal immunity with the RTC, Pasig City. During the trial, the
prosecutor called Ivy to the witness stand and
Objections to the competency of a husband or wife to offered her testimony to prove that her husband
testify in a criminal prosecution against the other may be committed arson. Can Ivy testify over the objection
waived as in the case of the other witnesses generally. of her husband on the ground of marital privilege?
Thus, the accused waives his or her privilege by calling (2006 Bar Question)
the other spouse as a witness for him or her. It is also
true that objection to the spouse's competency must be A: Yes. The marital disqualification rule is aimed at
made when he or she is first offered as witness, and that protecting the harmony and confidences of marital
the incompetency may be waived by the failure of the relations. Hence, where the marital and domestic
accused to make timely objection to the admission of the relations are so strained that there is no more harmony
spouse's testimony, although knowing of such to be preserved nor peace and tranquility which may be
incompetency, and the testimony admitted (People vs. disturbed, the marital disqualification no longer applies.
Francisco, 78 Phil. 694, citing 3 Wharton's Criminal
Evidence, 11th Ed., Section 1205, pp. 2060-2061). The act of Bob in setting fire to the house of his sister-in-
law, knowing fully well that his wife was there, is an act

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totally alien to the harmony and confidences of marital the deceased (Goñi v. CA, G.R. No. L-27434, September 23,
relation which the disqualification primarily seeks to 1986).
protect. The criminal act complained of had the effect of
directly and vitally impairing the conjugal relation. It In order to prevent perjury considering that the other
underscored the fact that the marital and domestic party cannot say anything anymore because he/she is
relations between her and the accused-husband have dead.
become so strained that that there is no more harmony,
peace or tranquility to be preserved (Alvarez v. Ramirez, NOTE: Inasmuch as the statutes are designed to protect
G.R. No. 143439, October 14, 2005). the interests of a deceased or incompetent person, they
do not operate to exclude testimony which is favorable
Q: Alex and Bianca are legally married. Alex is to the representative of such person. This is the
charged in court with the crime of serious physical conclusion, also, where the representative is not a party
injuries committed against Carding, son of Bianca (Herrera, 1999, citing Jones on Evidence, 6th Ed., p. 632).
and step-son of Alex. Bianca witnessed the infliction
of the injuries on Carding by Alex. The public Applicability of Dead Man’s Statute
prosecutor called Bianca to the witness stand and
offered her testimony as an eyewitness. Counsel for This rule “applies only to a civil case or a special
Alex objected on the ground of the marital proceeding over the estate of a deceased or insane
disqualification rule under the Rules of Court. person” (Regalado, Remedial Law Compendium, Vol. II,
1. Is the objection valid? 2008 Ed., p.743).
2. Will your answer be the same if Bianca’s
testimony is offered in a civil case for recovery Requisites for the applicability of Dead Man’s Statute
of personal property filed by Carding against
Alex? (2000, 2004 Bar Question) 1. The defendant in the case is the executor or
administrator or a representative of the deceased or
A: the person of unsound mind;
1. No. While neither the husband nor the wife may 2. The suit is upon the claim by the plaintiff against the
testify against each other without the consent of the estate of said deceased or person of unsound mind;
affected spouse, one exception is if the testimony of 3. The witness is the plaintiff, or an assignor of that
the spouse is in a criminal case for a crime party, or a person in whose behalf the case is
committed by one against the other or the latter’s prosecuted; and
direct descendants or ascendants (Sec. 22, Rule 130). 4. The subject of the testimony is as to any matter of
Here, Carding is the direct descendant of Bianca, the fact occurring before the death of such deceased
wife of Alex. Hence, the testimony of Bianca falls person or before such person became of unsound
under the exception to the marital disqualification mind (Sec. 23, Rule 130).
rule.
Extent of disqualification by reason of death or
2. No. The marital disqualification rule applies this insanity of the adverse party
time. The exception provided by the rules is in a
civil case by one spouse against the other. Here, the It constitutes only a partial disqualification as the
case involves a case by Carding for the recovery of witness is not completely disqualified but is only
personal property against Bianca’s spouse Alex. prohibited from testifying on the matters therein
specified (Regalado, 2008).
DISQUALIFICATION BY REASON OF
DEATH OR INSANITY OF THE ADVERSE PARTY Who may invoke the protection of the Dead Man’s
(DEAD MAN’S STATUTE / Statute
SURVIVING PARTY RULE)
(Sec. 23, Rule 130) The persons entitled to invoke the protection of the dead
man’s statute are the executor, administrator and any
Parties or assignors of parties to a case, or persons in other representative of a deceased person, when they
whose behalf a case is prosecuted, against an executor or are the defendants in a claim against the estate of the
administrator or other representative of a deceased deceased. The protection may likewise be invoked by a
person, or against a person of unsound mind, upon a person of unsound mind in a claim filed against him
claim or demand against the estate of such deceased (Riano, 2013).
person or against such person of unsound mind, cannot
testify as to any matter of fact occurring before the death The following cannot testify as to any matter of fact
of such deceased person or before such person became occurring before the death of such deceased person or
of unsound mind (Sec. 23, Rule 130). before such person became of unsound mind:
1. Parties or assignors of parties to a case or persons
Purpose of Dead Man’s Statute in whose behalf a case is prosecuted;
2. Against an executor or administrator or other
It is designed to close the lips of the party plaintiff when representative of a deceased person, or against a
death has closed the lips of the party defendant, in order person of unsound mind
to remove from the surviving party the temptation to do
falsehood and the possibility of fictitious claims against

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 EVIDENCE
The subject matter of the action is a claim or demand (Asturias v. CA, G.R. No. L-17895, September 30, 1963)
against the estate of such deceased person or against or cross-examines thereon (Tongco v. Vianzon,
such person of unsound mind. (Bar 2001, 2007) supra);
6. The rule will not apply where the plaintiff is the
Waiver of the protection of the Dead Man’s Statute executor or administrator as representative of the
deceased or if the plaintiff is the person of unsound
The protection may be waived by: mind (Riano, 2013);
1. Failing to object to the testimony; 7. Where the testimony is intended to prove a
2. Cross-examining the witness on the prohibited fraudulent transaction of the deceased (Ong Chua v.
testimony; or Carr, G.R. No. L-29512, January 17, 1929), provided
3. Offering evidence to rebut the testimony (Riano, such fraud is first established by evidence aliunde
2013). (Babao v. Perez, G.R. No. L-8334, December 28, 1957);
8. Negative testimony, that is, testimony that a fact did
Cases not covered by the Dead Man’s Statute not occur during the lifetime of the deceased
(Mendezona v. Vda. De Goitia, G.R. No. L-31739,
1. The rule has no application to mere witnesses March 11, 1930);
(Reyes v. Wells, 54 Phil. 102) who are neither parties 9. Testimony on the present possession by the witness
to the case, their assignors, nor persons in whose of a written instrument signed by the deceased (4
behalf the case is prosecuted (Guerrero, et al. v. St. Martin, op. cit., p. 164), assuch fact exists even after
Clare’s Realty Co., Ltd., et al., G.R. No. 58164, the decendent’s demise (Regalado, 2008);
September 2, 1983), nor to a nominal party, nor to 10. When the defendants, as heirs of the deceased, are
officers and stockholders of a plaintiff corporation sued in their personal capacity (Go Chi Gun v. Co Cho,
(Lichauco v. Atlantic Gulf & Pacific Co. of Manila, 84 96 Phil. 622); and
Phil. 330); 11. In an action against a partnership, plaintiff partners
may testify against a deceased partner (Fortis v.
NOTE: The rule is exclusive and cannot be Gutierrez Hermanos, 6 Phil. 100).
construed to extend its scope by implication so as to
disqualify persons not mentioned therein. Mere Q: True or False. The surviving parties rule bars
witnesses who are not included in the above Maria from testifying for the claimant as to what the
enumeration are not prohibited from testifying as to deceased Jose had said to her, in a claim filed by
a conversation or transaction between the deceased Pedro against the estate of Jose. Explain. (Bar 2001,
and a third person, if he took no active part therein 2007)
(Sanson v. CA, G.R. No. 127745, April 22, 2003).
A: False. The rule bars only a party plaintiff, or his
2. When a counterclaim is set up by the administrator assignor, or a person in whose behalf a case is
[or executor or representatives] of the estate, the prosecuted (Sec. 23, Rule 130). Maria is merely a witness
case is removed from the operation of the dead and is not one of those enumerated as barred from
man’s statute (Riano, 2013). When it is the executor testifying (Riano, 2013).
or administrator or representatives of the estates
that sets up the counterclaim, the plaintiff, herein Dead Man’s Statute v. Marital Disqualification Rule
respondent, may testify to occurrences before the
death of the deceased to defeat the counterclaim Dead Man’s Statute Marital Disqualification
(Sunga-Chan v. Chua, G.R. No. 143340, August 15, Rule
2001); Only a partial A complete and absolute
3. The adverse party is competent to testify to disqualification as the disqualification
transactions or communications with the deceased witness is not completely
or incompetent person which were made with an disqualified but is only
agent of such person in cases in which the agent is prohibited from testifying
still alive and competent to testify. But the on the matters therein
testimony of the adverse party must be confined to specified
those transactions or communications which were
had with the agent (Herrera, 1999, citing Goñi v. CA, Applies only to a civil case GR: Applies to a civil or
G.R. No. L-27434, September 23, 1986); or special proceeding over criminal case
4. In land registration cases instituted by the the estate of a deceased or
decedent’s representatives, this prohibition does insane person XPN: In a civil case by one
not apply as the oppositors are considered spouse against the other,
defendants and may, therefore, testify against the or in a criminal case for a
petitioner (Nañagas v. Mun. of San Narciso, 53 Phil. crime committed by one
719). This prohibition does not also apply in spouse against the other or
cadastral cases since there is no plaintiff or the latter’s direct
defendant therein (Tongco v. Vianzon, G.R. No. descendants or ascendants
27498, September 20, 1927);
5. The disqualification under this rule is waived if the
defendant does not timely object to the admission of
such evidence or testifies on the prohibited matters

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The rule prohibits The rule prohibits Cases when marital privilege is inapplicable
testimony that is against testimony that is for or
the estate of a deceased against the party-spouse 1. In a civil case by one against the other; or
person or against a person (Sec. 22, Rule 130). 2. In a criminal case for a crime committed by one
of unsound mind (Sec. 23, against the other or the latter’s direct descendants
Rule 130). or ascendants (Sec. 24(a), Rule 130).
(Regalado, 2008) 3. Information acquired by a spouse before the
marriage even if received confidentially will not fall
DISQUALIFICATION BY REASON OF squarely within the privilege (Riano, 2013).
PRIVILEGED COMMUNICATION
Sec. 22 v. Sec. 24(a)
Scope of disqualification by reason of privileged
communication Disqualification By Disqualification By
Reason of Marriage Reason of Marital
The disqualification by reason of privileged (Sec. 22) Privilege
communication applies to both civil and criminal cases (Sec. 24(a))
except as to the doctor-patient privilege, which is Can be invoked only if one Can be claimed whether or
applicable only in civil cases. Unless waived, the of the spouses is a party to not the other spouse is a
disqualification under Sec. 24 remains even after the the action party to the action
various relationships therein have ceased to exist. Applies only if the Can be claimed even after
marriage is existing at the the marriage has been
Who may assert the privilege time the testimony is dissolved
offered
The holder of the privilege, authorized persons and Constitutes a total Applies only to
persons to whom privileged communication were made prohibition against any confidential
may assert the privilege (Herrera, 1999). testimony for or against communications between
the spouse of the witness the spouses
Marital Privilege (Regalado, 2008)
(Sec. 24(a), Rule 130) Can no longer be invoked The spouse affected by the
once the marriage is disclosure of the
The husband or the wife, during or after the marriage, dissolved information or testimony
cannot be examined without the consent of the other as may object even after the
to any communication received in confidence by one dissolution of the marriage
from the other during the marriage except in a civil case (Riano, 2013)
by one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct Other items of communication overheard or in
descendants or ascendants (Sec. 24(a), Rule 130). presence of third parties

Purpose of marital privilege GR: Third persons who, without the knowledge of the
spouses, overhear the communication are not
The society has a deeply rooted interest in the disqualified to testify.
preservation of peace of families and in the maintenance
of the sacred institution of marriage, and its strongest XPN: When there is collusion and voluntary disclosure to
safeguard is to preserve with zealous care any violation a third party, that third party becomes an agent and
of those hallowed confidences inherent in, and cannot testify (Francisco, 1993).
inseparable from, the marital status. Therefore, the law
places the ban of its prohibition upon any breach of the Q: In June 1998, A told B that he killed C. After a year,
confidence between husband and wife by declaring all A married B. Upon the offer of testimony of B for the
confidential communications between them to be alleged killing of C, can A validly make an objection?
incompetent matter for either of them to expose as (B) Supposed the testimony was offered at the time
witness (Herrera, 1999, citing Mercer v. State, 40 Fla. 216, the marriage between A and B was already
24 50154). terminated, can A still validly object, this time on the
ground of marital privilege rule under Sec. 24? (C)
Requisites for the application of marital privilege Supposed the information received by B was
communicated to A during their marriage, can A
3. There must be a valid marriage between the validly object to the testimony of B if it was offered
husband and wife; after the dissolution of their marriage on the ground
4. There is a communication received in confidence by of marital disqualification rule under Sec. 22?
one from the other;
5. The confidential communication was received A:
during the marriage (Riano, 2013); and i. Yes. Irrespective of the fact that B was informed of
6. The spouse against whom such evidence is being the killing before her marriage to A, still, the
offered has not given his or her consent to such testimony was offered during their marriage,
testimony (Regalado, 2008). which brings it into the ambit of the marital
disqualification rule under Sec. 22.

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ii. No. The testimony even if confidential was not The privilege does not extend to communications where
communicated to B during the time of marriage, the client’s purpose is the furtherance of a future
but before the marriage. intended crime or fraud, or for the purpose of
iii. No. He can only object based on the marital committing a crime or a tort, or those made in
disqualification rule if the testimony was offered furtherance of an illicit activity (Riano, 2013).
during their marriage and not to testimony offered
after the dissolution of the marriage. The proper Purpose of Attorney-Client Relationship
objection must be based on marital privilege rule
under Sec. 24 because such defense is applicable To encourage full disclosure by client to her attorney of
even after the dissolution of marriage provided all pertinent matters, so as to further the administration
that the communication was made confidentially to of justice (Herrera, 1999).
B during their marriage.
Requisites for the application Attorney-Client
Q: James, an alien, was criminally charged of privilege:
promoting and facilitating child prostitution and
other sexual abuses under R.A. 7610. The principal 1. There is an attorney and client relation;
witness against him was his Filipina wife, Conching. 2. The privilege is invoked with respect to a
Earlier, she had complained that James’ hotel was confidential communication between them in the
being used as a center for sex tourism and child course of or with a view to professional
trafficking. The defense counsel for James objected employment; and
to the testimony of Conching at the trial of the child 3. The client has not given his consent to the attorney’s
prostitution case and the introduction of the testimony thereon; or if the attorney’s secretary,
affidavits she executed against her husband as a stenographer or clerk is sought to be examined, that
violation of spousal confidentiality and marital both the client and the attorney have not given their
privilege rule. It turned out that Patring, the minor consent thereto (Regalado, 2008).
daughter of Conching by her first husband who was a
Filipino, was molested by James earlier. Thus, Test in applying the attorney-client privilege
Conching had filed for legal separation from James
since last year. May the court admit the testimony The test is whether the communications are made to an
and affidavits of the wife, Conching, against her attorney with a view of obtaining from him professional
husband, James, in the criminal case involving child assistance or advice regardless of whether there is a
prostitution? Reason. (2004 Bar Question) pending or merely impending litigation or any litigation
(Herrera, 1999).
A: If the testimony and affidavit of the wife are evidence
of the case against her husband for child prostitution NOTE: The present rules do not require a perfected
involving her daughter, the evidence are admissible. The attorney-client relationship for the privilege to exist. It is
marital privileged communication rule under Sec. 24 of enough that the communication or advice be “with a
Rule 130, as well as the marital disqualification rule view to” professional employment (Riano, 2013).
under Sec. 22 of the same rule, do not apply to and
cannot be invoked in a criminal case committed by a Confidential communication
spouse against the direct descendants of the other.
It refers to information transmitted by voluntary act of
A crime committed by the husband against the daughter disclosure between attorney and client in confidence and
of his wife is considered a crime committed against the by means which, so far as the client is aware, discloses
wife and directly attacks or vitally impairs the marital the information to no third person other than one
relations (Riano, 2013, citing Ordoño v. Daquigan, G.R. No. reasonably necessary for the transmission of the
L-39012, January 31, 1975). information or the accomplishment of the purpose for
which it was given (Mercado v. Vitriolo, A.C. No. 5108,
Attorney-Client Privilege May 26, 2005).
(Sec. 24(b), Rule 130)
Waiver of Attorney-Client Privilege
An attorney cannot, without the consent of his client, be
examined as to any communication made by the client to The privilege is personal and it belongs to the client. If
him, or his advice given thereon in the course of, or with the client waives the privilege, no one else including the
a view to, professional employment, nor can an attorney can invoke it (Riano, 2013, citing In Re: Young’s
attorney's secretary, stenographer, or clerk be examined, Estate, 33 Utah 382, 94 P 731, 732).
without the consent of the client and his employer,
concerning any fact the knowledge of which has been Cases when the attorney-client privilege is
acquired in such capacity (Sec. 24(b), Rule 130). (Bar inapplicable
2008, 2010)
The privilege does not apply to communications which
NOTE: The Rules safeguarding privileged are:
communications between attorney and client shall apply 1. Intended to be made public;
to similar communications made to or received by the 2. Intended to be communicated to others;
law student, acting for the legal clinic (Sec. 3, Rule 138-A). 3. Intended for an unlawful purpose;

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attorney and client because the crime had not been
NOTE: Statements and communications regarding the committed yet and it is no part of a lawyer’s professional
commission of a crime already committed, made by a duty to assist or aid in the commission of a crime; hence
party who committed it, to an attorney, consulted as not in the course of professional employment.
such, are privileged communications. Contrarily, the
unbroken stream of judicial dicta is to the effect that The second visit by accused Edgardo to his lawyer on the
communications between attorney and client having to next day (August 16, 2008) after the swindling was
do with the clients contemplated criminal acts, or in aid committed may also suffer from the same infirmity as
or furtherance thereof, are not covered by the cloak of the conversations had during their first meeting
privileges ordinarily existing in reference to inasmuch as there could not be a complaint made
communications between attorney and client (People of immediately after the estafa was committed. The
the Philippines v. Sandiganbayan, et al., G.R. No. 115439- privilege covering a lawyer-client relation under Sec.
41, July 16, 1997). 24(b), Rule 130, may not be invoked, as it is not a ground
for quashal of a subpoena ad testificandum under Sec. 4,
4. Received from third persons not acting in behalf or Rule 21 of the Rules of Court.
as agents of the client; or
5. Made in the presence of third parties who are Q: A tugboat owned by SPS sank in Manila Bay while
strangers to the attorney-client relationship helping to tow another vessel, drowning five (5) of
(Regalado, 2008). the crew in the resulting shipwreck. At the maritime
board inquiry, the four (4) survivors testified. SPS
Applicability of the rule with regard to the identity of engaged Atty. Ely to defend against potential claims
the client and to sue the company owning the other vessel for
damages to the tug. Ely obtained signed statements
GR: A lawyer may not invoke the privilege and refuse to from the survivors. He also interviewed other
divulge the name or identity of his client. persons, in some instances making memoranda. The
heirs of the five (5) victims filed an action for
XPNs: damages against SPS.
1. Where a strong possibility exists that revealing the
client’s name would implicate the client in the very Plaintiff’s counsel sent written interrogatories to Ely,
activity for which he sought the lawyer’s advice; asking whether statements of witnesses were
2. Where disclosure would open the client to civil obtained; if written, copies were to be furnished; if
liability; or oral, the exact provisions were to be set forth in
3. Where the government’s lawyers have no case detail. Ely refused to comply, arguing that the
against an attorney’s client unless, by revealing the documents and information asked are privileged
client’s name, the said name would furnish the only communication. Is the contention tenable? Explain.
link that would form the chain of testimony (2008 Bar Question)
necessary to convict an individual for a crime
(Regala vs. Sandiganbayan, G.R. No. 105938, A: The contention is not tenable. The documents and
September 20, 1996). information sought to be disclosed are not privileged.
They are evidentiary matters which will eventually be
Q: On August 15, 2008, Edgardo committed estafa disclosed during the trials. What is privileged, under Sec.
against Petronilo in the amount of 3 million pesos. 24(b) of Rule 130, is (a) the communication made by the
Petronilo brought his complaint to the National client to the attorney, or (b) the advice given by the
Bureau of Investigation, which found that Edgardo attorney, in the course of, or with the view to
had visited his lawyer twice, the first time on August professional employment. The information sought is
14, 2008 and the second August 16, 2008; and that neither a communication by the client to the attorney
both visits concerned the swindling of Edgardo. nor an advice by the attorney to his client (Riano, 2013).

During the trial, the RTC issued a subpoena ad NOTE: The weight of authority supports the view that
testificandum to Edgardo’s lawyer for him to testify when the client and attorney become embroiled in a
the conversations during their first and second controversy between themselves, as in action filed for
meetings. May the subpoena be quashed on the payment of attorney’s fees or for damages against the
ground of privileged communication? Explain fully. negligence of the attorney, the privilege is removed from
(2008 Bar Question) the attorney’s lips (Riano, 2013).

A: No. The subpoena may not be simply quashed on the Physician and Patient Privilege
allegation that the testimony to be elicited constitutes (Sec. 24(c), Rule 130)
privileged communication. It may be noted that the
accused committed the crime swindling on August 15, A person authorized to practice medicine, surgery or
2008, whereas he first visited his lawyer on August 14, obstetrics cannot in a civil case, without the consent of
2008 or before he committed the swindling. the patient, be examined as to any advice or treatment
given by him or any information which he may have
Clearly the conversations the accused had with his acquired in attending such patient in a professional
lawyer during such first visit, before he committed the capacity, which information was necessary to enable him
swindling cannot be protected by the privilege between to act in that capacity, and which would blacken the

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reputation of the patient (Sec. 24(c), Rule 130). 2. The communication is irrelevant to the professional
employment;
Purpose of this privilege 3. The communication was made for an unlawful
purpose;
The privilege is intended to facilitate and make safe, full 4. The information was intended to be made public; or
and confidential disclosure by patient to doctor of all 5. There was a waiver of the privilege either by
facts, circumstances, and symptoms, untrammeled by provisions of contract or law (Regalado, 2008).
apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the NOTE: It is essential that at the time the communication
end that the physician may form a correct opinion, and was made, the professional relationship is existing, that
be enabled safely and efficaciously to treat his patient is, while the doctor was attending to the patient for
(Herrera, 1999). curative, preventive or palliative treatment. It is not
however necessary that the physician-patient
Requisites for the applicability of physician and relationship was created through the voluntary act of the
patient privilege patient. The treatment may have been given at the
behest of another, the patient being in
1. The privilege is claimed in a civil case; extremis(Regalado, 2008).

NOTE: This privilege cannot be claimed in a Q: In a proceeding for annulment of marriage on the
criminal case presumably because the interest of the ground of psychological incapacity, the husband
public in criminal prosecution should be deemed presented a confidential psychiatric report prepared
more important than the secrecy of the by a physician after examining his wife, but without
communication(Riano, 2013). the knowledge of the physician. Can the wife invoke
the physician patient privilege?
2. The person against whom the privilege is claimed is
one duly authorized to practice medicine, surgery or A: No. The person against whom the privilege is claimed
obstetrics; is not one duly authorized to practice medicine, surgery,
3. Such person acquired the information while he was or obstetrics. He is simply the patient's husband who
attending to the patient in his professional capacity; wishes to testify on a document executed by medical
4. The information was necessary to enable him to act practitioners. Neither can his testimony be considered a
in that capacity; and circumvention of the prohibition because his testimony
5. The information was confidential and, if disclosed, cannot have the force and effect of the testimony of the
would blacken the reputation of the patient (Krohn physician who examined the patient and executed the
v. CA, G.R. No. 108854, June 14, 1994, citing Lim v. CA, report. The proper objection should be hearsay and not
G.R. No. 91114, September 25, 1992). privileged communication (Krohn v. CA, G.R. No. 108854,
June 14, 1994).
Information which cannot be disclosed
Q: Aimee sought to offer as evidence the testimony of
1. Any advice given to the client; Dr. Naval to prove that Bob is not the illegitimate son
2. Any treatment given to the client; of Yuring as the latter was sterile. Bob objected to
3. Any information acquired in attending such patient the admissibility of the said testimony arguing that
provided that the advice, treatment or information the same is covered by the physician-patient
was made or acquired in a professional capacity and privilege because the testimony would blacken the
was necessary to enable him to act in that capacity; reputation of Yuring. It was alleged that Yuring
and became sterile because he contracted gonorrhea.
4. That the information sought to be disclosed would Aimee argues that Yuring is long dead and, as such,
tend to blacken the reputation of the patient (Sec. the privilege may not be invoked.
24(c), Rule 130). 1. Is the testimony of Dr. Naval covered by the
physician-patient privilege?
Waiver of Privilege 2. Does the fact that Yuring is long dead bar the
application of the physician-patient privilege?
The waiver may be made expressly or impliedly. The
waiver may be by a contract as in medical or life A:
insurance. When there is disclosure by the patient of the 1. Yes. Yuring's sterility arose when he contracted
information, there is necessarily, a waiver. When the gonorrhea, a fact which most assuredly blackens his
patient answers questions on matters which are reputation. In fact, given that society holds virility at
supposedly privileged on cross-examination, the waiver a premium, sterility alone, without the attendant
also exists (Riano, 2013). There could also be waiver by embarrassment of contracting a sexually-
operation of law (Sec. 4, Rule 28). transmitted disease, would be sufficient to blacken
the reputation of any patient.
Cases when Physician and Patient Privilege is 2. No. The privilege of secrecy is not abolished or
inapplicable: terminated because of death. The purpose of the law
would be thwarted and the policy intended to be
The privilege does not apply where: promoted thereby would be defeated, if death
1. The communication was not given in confidence; removed the seal of secrecy, from the

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communications and disclosures which a patient official acts, transactions, or decisions, as well as to
should make to his physician. After one has gone to government research data used as basis for policy
his grave, the living are not permitted to impair his development, shall be afforded the citizen, subject to
name and disgrace his memory by dragging to light such limitations as maybe provided by law (Sec. 7, Article
communications and disclosures made under the III, 1987 Constitution).
seal of the statute (Gonzales v. CA, G.R. No. 117740,
October 30, 1998). Requisites for its application of the privilege

Priest/Minister-Penitent Privilege 1. The holder of the privilege is the government, acting

(Sec. 24(d), Rule 130) through a public officer;
2. The communication was given to the public officer
A minister or priest cannot, without the consent of the in official confidence;
person making the confession, be examined as to any 3. The communication was given during the term of
confession made to or any advice given by him in his office of the public officer or afterwards;
professional character in the course of discipline 4. The public interest would suffer by the disclosure of
enjoined by the church to which the minister or priest the communication (Herrera, 1999).
belongs (Sec. 24(d), Rule 130).
Cases when the privilege is inapplicable
Purpose of the priest-penitent privilege
If what is asked is among the following, disclosure will be
To allow and encourage individuals to fulfill their compelled:
religious, emotional or other needs by protecting 1. Useful evidence to vindicate the innocence of an
confidential disclosures to religious practitioners accused person;
(Peralta, Jr., 2005, citing Evidence, Oregon State Bar 2. To lessen risk of false testimony;
Committee on Continuing Legal Education). 3. Essential to the proper disposition of the case; or
4. The benefit to be gained by a correct disposition of
Requisites for the applicability of the priest-penitent the litigation was greater than any injury which
privilege could inure to the relation by a disclosure of
information (Francisco, 1996).
1. The confession must have been made to the priest in
his professional character according to the NOTE: The disclosure or non-disclosure is not
discipline of the church to which the priest or dependent on the will of the officer but on the
minister belongs (Sec. 24(d), Rule 130); and determination by a competent court (Riano, 2013).
2. Communications made must be confidential and
must be penitential in character, e.g., under the seal Executive privilege
of the confessional (Regalado, 2008).
There are certain types of information which the
NOTE: The privilege also extends not only to a government may withhold from the public like military,
confession made by the penitent but also to any advice diplomatic and other national security secrets (Riano,
given by the minister or priest. The confession and the 2013).
advice must be made or given pursuant to the course of
discipline of the denomination or sect to which the Q: Secretary of Fisheries Nenito Abesamis received
minister or priest belongs (Riano, 2013). an invitation for questioning in a hearing from the
Senate of the Philippines regarding the Fish Feeds
Extent of the priest-penitent privilege Scam. During the hearing, Abesamis didn’t answer
the questions propounded to him by Senator Renato
The communication must be made pursuant to Pamintuan claiming that his position entitles him to
confession of sins. Where the penitent discussed invoke the executive privilege. Is his contention
business arrangements with the priest, the privilege correct?
does not apply (Riano, 2013).
A: No. As held in the case of Senate of the Philippines vs.
Public Officer as Regards Ermita, G.R. No. 169777, April 25, 2006), the Court upheld
Communications Made in Official Confidence the doctrine of executive privilege but it found E.O. 464
partly constitutionally defective, specifically Secs. 2(b)
A public officer cannot be examined during his term of and 3 which required government officials below the
office or afterwards, as to communications made to him heads of executive departments to secure consent from
in official confidence, when the court finds that the the President before appearing in congressional hearings
public interest would suffer by the disclosure (Sec. 24(e), and investigations. The Court noted that E.O. 464 covers
Rule 130). persons, which is a misuse of the doctrine because the
privilege is to be properly invoked in relation to specific
Reason: General grounds of public policy categories of information and not categories of persons
(Riano, 2013).
The right of the people to information on matters of
public concern shall be recognized. Access to official
records, and to documents and papers pertaining to

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 EVIDENCE
Parental and Filial Privilege he may have acquired in his professional capacity
(Sec. 25, Rule 130) (Sec. 24 (c), Rule 130).

No person may be compelled to testify against his Other Privileged Matters

parents, other direct ascendants, children or other direct
descendants. (Sec. 25, Rule 130). (Bar 1998) 1. The guardian ad litem shall not testify in any
proceeding concerning any information, statement,
NOTE: Under the Family Code, no descendant shall be or opinion received from the child in the course of
compelled, in a criminal case, to testify against his serving as guardian ad litem, unless the court finds
parents and grandparents. As an exception, the it necessary to promote the best interests of the
descendant may be compelled to give his testimony in child (Sec. 5(e), Rule on Examination of a Child
the following instances: Witness);
1. When such testimony is indispensable in a crime 2. Editors may not be compelled to disclose the source
committed against said descendant; or of published news(R.A. 53, as amended by R.A. 1477);
2. In a crime committed by one parent against the 3. Votersmay not be compelled to disclose for whom
other (Riano, 2013, citing Art. 215, Family Code). they voted (Air Philippines v. Pennswell, Inc., G.R. No.
172835, December 13, 2007);
Q: A was convicted of raping his own daughter. His 4. Trade secrets (Ibid.);
son, an 8-year-old boy testified against him. Can he 5. Information contained in tax census returns (Ibid.);
object to the testimony on the ground of filial 6. Bank deposits(Sec. 2, R.A. 1405);
privilege and invoke the incompetence of the child? 7. Information and statements made at conciliation
proceedings (Art. 233, Labor Code);
A: No. The competency of his son is not affected by the 8. Institutions covered by the law and its officers and
filial privilege rule. The Rule is not strictly speaking a employees who communicate a suspicious
disqualification but refers to a privilege not to testify, transaction to the Anti-Money Laundering Council
which can be invoked and waived like other privileges. (Sec. 6 of R.A. 9194 amending Sec. 9 of R.A. 9160); and
The son was not compelled to testify against his father 9. The prosecutor may not be compelled to present an
but chose to waive that filial privilege when he informer to protect his identity and when his
voluntarily testified against the accused (People v. testimony would be merely corroborative and
Invencion, G.R. No. 131636, March 5, 2003). cumulative (Herrera, 1999).

Q: A married to B killed the latter. One of the NOTE: Privileged information cannot be otherwise
witnesses was C, the mother of B, who was being disclosed upon a production order issued by the court
compelled to testify against A. Can A object on the pursuant to Rule 27. The said Rule sets an unequivocal
ground of parental privilege? proviso that the documents, papers, books, accounts,
letters, photographs, objects or tangible things that may
A: No. C is not a direct ascendant of A but that of B, being be produced and inspected should not be privileged. On
the mother of the latter. Thus, the privilege does not the ground of public policy, the rules providing for
belong to A. production and inspection of books and papers do not
authorize the production or inspection of privileged
Q: C is the child of the spouses H and W. H sued his matter; that is, books and papers which, because of their
wife W for judicial declaration of nullity of marriage confidential and privileged character, could not be
under Article 36 of the Family Code. In the trial, the received in evidence. Such a condition is in addition to
following testified over the objection of W: C, H and the requisite that the items be specifically described, and
D, a doctor of medicine who used to treat W. Rule on must constitute or contain evidence material to any
W's objections which are the following: matter involved in the action and which are in the party’s
1. H cannot testify against her because of the rule possession, custody or control (Air Philippines
on marital privilege; Corporation v. Pennswell Inc., G.R. No. 172835, December
2. C cannot testify against her because of the 13, 2007).
doctrine on parental privilege; and
3. D cannot testify against her because of the EXAMINATION OF A WITNESS
doctrine of privileged communication between
patient and physician. (1998 Bar Question) GR: The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or
A: affirmation. Unless the witness is incapacitated to speak,
1. The rule of marital privilege cannot be invoked in or the question calls for a different mode of answer, the
the annulment case under Rule 36 of the Family answers of the witness shall be given orally (Sec. 1, Rule
Code because it is a civil case filed by one against the 132).
other (Sec. 22, Rule 130).
2. W cannot invoke the privilege which belongs to the NOTE: Open court examination allows the court the
child. C may testify if he wants to although he may opportunity to observe the demeanor of the witness and
not be compelled to do so (Sec. 25, Rule 130). also allows the adverse party to cross-examine the
3. D, as a doctor who used to treat W, is disqualified to witness (Riano, 2013).
testify against W over her objection as to any advice
or treatment given by him or any information which

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XPNs: Matters to be recorded during trial
The testimony of the witness may not be given in open
court in the following cases: The entire proceedings of a trial or hearing, including:
1. In civil cases, by depositions pursuant to and under 1. Questions propounded to a witness and his answers
the limitations of Rules 23 and 24 (Regalado, 2008); thereto; and
2. In criminal cases, by depositions or conditional 2. The statements made by the judge or any of the
examinations, pursuant to Secs. 12-15, Rule 119, parties, counsel, or witnesses with reference to the
and Sec. 1, Rule 123, or by the records of the case (Sec. 2, Rule 132).
preliminary investigation, under the circumstances
of Sec. 1(f) of Rule 115 (Regalado, 2008); NOTE: These shall be recorded by means of shorthand or
3. In criminal cases covered by the Rule on Summary stenotype or by other means of recording found suitable
Procedure, the affidavits of the parties shall by the court (Ibid.).
constitute the direct testimonies of the witnesses
who executed the same (Riano, 2013, citing Sec. 15, Exclusion and separation of witnesses
Rule on Summary Procedure);
4. In civil cases covered by the Rule on Summary GR: The judge may exclude from the court any witness
Procedure, the parties are merely required to not at the time under examination, so that he may not
submit the affidavits of their witnesses and other hear the testimony of other witnesses. The judge may
pieces of evidence on the factual issues, together also cause witnesses to be kept separate and to be
with their position papers, setting forth the law and prevented from conversing with one another until all
the facts relied upon (Riano, 2013, citing Sec. 9, Rule shall have been examined (Sec. 15, Rule 132).
on Summary Procedure); and
5. Under the Judicial Affidavit Rule, the judicial XPNs: The following may not be excluded:
affidavit shall take the place of direct testimonies of 1. An accused in a criminal case as it is his
witnesses (Sec. 2, Judicial Affidavit Rule). constitutional right to be present at all stages of the
proceedings;
Oath 2. Parties to the litigation will generally not be
excluded, their presence usually being necessary to
It is an outward pledge made under an immediate sense a proper management of the case;
of responsibility to God or a solemn appeal to the 3. Party in interest though not a party to the record
Supreme Being in attestation of the truth of some and an agent of such party, if the presence of such
statement (Black’s Law Dictionary, 5th Ed., p. 966). agent is necessary;
4. Officers and complaining witnesses are customarily
NOTE: The object of the rule is to affect the conscience of excepted from the rule unless the circumstances
the witness to compel him to speak the truth, and also to warrant otherwise; and
lay him open to punishment for perjury if he testifies 5. Expert witnesses are not excluded until production
falsely. of evidence bearing upon the question or subject as
to which they have been called or unless liable to be
In order that one may be competent as a witness, it is not influenced by the testimony of the other witnesses
necessary that he has a definite knowledge of the (Herrera, 1999).
difference between his duty to tell the truth after being
sworn and before, or that he is able to state it, but it is Recantation of a witness
necessary that he be conscious that there is a difference
(People v. Bisda, G.R. No. 140895, July 17, 2003). Courts must not automatically exclude the original
statement based solely on the recantation. It should
Affirmation determine which statement should be given credence
through a comparison of the original and the new
It is a substitute for an oath and is solemn and formal statements, applying the general rules of evidence (PLDT
declaration that the witness will tell the truth (Black’s v. Bolso, G.R. No. 159701, August 17, 2007).
Law Dictionary, 5th Ed., p. 55).
RIGHTS AND OBLIGATIONS OF A WITNESS
NOTE: The option to take either an oath or affirmation is
given to the witness and not to the court (Riano, 2013). Rights of a witness

Waiver of the right to have the witness sworn 1. To be protected from irrelevant, improper, or
insulting questions, and from harsh or insulting
The right to have the witness sworn may be waived. If a demeanor;
party admits proof to be taken in a case without an oath, 2. Not to be detained longer than the interests of
after the testimony has been acted upon by the court, justice require;
and made the basis of a judgment, such party can no 3. Not to be examined except only as to matters
longer object to the admissibility of the testimony. He pertinent to the issue;
will be deemed to have waived the objection. (People v. 4. Not to give an answer which will tend to subject him
Bisda, G.R. No. 140895, July 17, 2003). to a penalty for an offense unless otherwise
provided by law (right against self-incrimination);

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 EVIDENCE
NOTE: This refers to immunity statutes wherein the when the incriminating question is being asked, since he
witness is granted immunity from criminal has no way of knowing in advance the nature or effect of
prosecution for offenses admitted in his testimony, the questions to be asked of him. That this right may
e.g. under Sec. 8, R.A. 1379, the law providing for the possibly be violated or abused is no ground for denying
forfeiture of unlawfully acquired property; and the Senate Committees their power of inquiry (In Re:
under P.D. 749, in prosecutions for bribery and graft Sabio, G.R. Nos. 174340, 174318 & 174177, October 17,
(Regalado, 2008). 2006).

5. Not to give an answer, which will tend to degrade Refusal of a witness to take the witness stand
his reputation, unless it be to the very fact at issue
or to a fact from which the fact in issue would be GR: A witness may not refuse to take the witness stand.
presumed. But a witness must answer to the fact of
his previous final conviction for an offense (Sec. 3, XPNs:
Rule 132). 1. An accused in a criminal case; or
2. A party who is not an accused in a criminal case is
Classifications of Immunity Statutes allowed not to take the witness stand – in
administrative cases/proceedings that partook of
Use Immunity Transactional Immunity the nature of a criminal proceeding or analogous to
Prohibits the use of the Grants immunity to the a criminal proceeding. As long as the suit is criminal
witness' compelled witness from prosecution in nature, the party thereto can altogether decline to
testimony and its fruits in for an offense to which his take the witness stand. It is not the character of the
any manner in connection compelled testimony suit involved but the nature of the proceedings that
with the criminal relates. It is immunity from controls (Rosete, et. al. v. Lim, et. al., G.R. No. 136051,
prosecution of the witness. prosecution by reason or June 8, 2006).
It is immunity from use of on the basis of the
any statement given by the testimony (Galman v. Right against self-incrimination not available under
witness. Pamaran, G.R. Nos. 71208- the Witness Protection Program
09 & 71212-13, August 30,
1985). A: Any witness admitted into the program of the Witness
Protection, Security and Benefit Act cannot refuse to
Obligation of a witness in open court testify or give evidence or produce books, documents,
records or writings necessary for the prosecution of the
GR: A witness must answer questions, although his offense or offenses for which he has been admitted into
answer may tend to establish a claim against him (Sec. 3, the Program on the ground of the constitutional right
Rule 132). against self-incrimination but he shall enjoy immunity
from criminal prosecution and cannot be subjected to
XPNs: A witness may validly refuse to answer under the any penalty or forfeiture for any transaction, matter or
following: thing concerning his compelled testimony or books,
1. Right against self-incrimination – If his answer will documents, records and writings produced (Sec. 14, R.A.
tend to subject him to punishment for an offense; or 6981).

NOTE: The constitutional assurance of the right Persons eligible to the Witness Protection, Security
against self-incrimination is a prohibition against and Benefit Program
the use of physical or moral compulsion to extort
communications from the accused. It is simply a Any person who has witnessed or has knowledge or
prohibition against legal process to extract from the information on the commission of a crime and has
accused’s own lips, against his will, admission of his testified or is testifying or about to testify before any
guilt (Ong v. Sandiganbayan & Office of the judicial or quasi-judicial body, or before any
Ombudsman, G.R. No. 126858, September 16, 2005). investigating authority may be admitted provided that:
1. The offense in which his testimony will be used is a
2. Right against self-degradation – If his answer will grave felony as defined under the Revised Penal
have a direct tendency to degrade his character. Code, or its equivalent under special laws;
2. His testimony can be substantially corroborated in
XPNs to the XPN: A witness may not invoke the its material points;
right against self-degradation if: 3. He or any member of his family within the second
1. Such question is directed to the very fact at civil degree of consanguinity or affinity is subjected
issue or to a fact from which the fact at issue to threats to life or bodily injury or there is a
would be presumed; or likelihood that he will be killed, forced, intimidated,
2. If it refers to his previous final conviction for an harassed or corrupted to prevent him from
offense (Regalado, 2008). testifying, or to testify falsely, or evasively, because
or on account of his testimony; and
NOTE: A witness invited by the Senate who refused to 4. He is not a law enforcement officer, even if he would
testify and arrested for contempt, cannot invoke the be testifying against the other law enforcement
right against self-incrimination in a petition for certiorari officers. In such a case, only the immediate members
and prohibition. The said right may be invoked only

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403 FACULTY OF CIVIL LAW
 REMEDIAL LAW
of his family may avail themselves of the protection a. To bring out facts favorable to counsel’s client
provided for under the Act (Sec. 3, R.A. 6981). not established by the direct testimony; and
b. To enable counsel to impeach or to impair the
State witness may be liable for contempt or criminal credibility of the witness (Ibid.).
prosecution 3. Re-direct examination
a. To afford opportunity to the witness to explain
A State witness may be liable for contempt or criminal or supplement his answers given during the
prosecution. If he fails or refuses to testify or to continue cross-examination; and
to testify without just cause when lawfully obliged to do b. To rehabilitate a witness whose credibility has
so, he shall be prosecuted for contempt. If he testifies been damages (Ibid.).
falsely or evasively, he shall be liable to prosecution for 4. Re-cross examination
perjury. If a State witness fails or refuses to testify, or a. To overcome the proponent’s attempt to
testifies falsely or evasively, or violates any condition rehabilitate the witness; and
accompanying such immunity without just cause, as b. To rebut damaging evidence brought out
determined in a hearing by the proper court, his during redirect examination.
immunity shall be removed and he shall be subject to
contempt or criminal prosecution. Moreover, the Q: Tony states on direct examination that he once
enjoyment of all rights and benefits under R.A. 6981 shall knew the facts being asked but he cannot recall them
be deemed terminated. The witness may, however, purge now. When handed a written record of the facts, he
himself of the contumacious acts by testifying at any testifies that the facts are correctly stated, but that
appropriate stage of the proceedings (Sec. 13, R.A. 6981). he has never seen the writing before. Is the writing
admissible as past recollection recorded? Explain.
ORDER IN THE EXAMINATION OF AN (1996 Bar Question)
INDIVIDUAL WITNESS
A: No, because for the written record to be admissible as
past recollection recorded, it must have been written or
recorded by Tony 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 memory
and he knew that the same was correctly written or
recorded (Sec. 16, Rule 132). But in this case Tony has
never seen the writing before.

When the witness may refer to memorandum

Present Recollection Past Recollection

Revived Recorded
A witness may be allowed A witness may also testify
to refresh his memory from such a writing or
respecting a fact, by record, though he retains
anything written or no recollection of the
recorded by himself or particular facts, if he is
under his direction at the able to swear that the
time when the fact writing or record correctly
occurred, or immediately stated the transaction
thereafter, or later so long when made; but such
as the fact was fresh in his evidence must be received
memory and he knew that with caution (Sec. 16, Rule
it was correctly written or 132).
recorded; but in such case
the writing or record must
be produced and may be
inspected by the adverse
party, who may, if he
chooses, cross-examine the
witness upon it, and may
read it in evidence.
Applies if the witness Applies where the witness
remembers the facts does not recall the facts
regarding his entries and is involved, and is entitled to
Purposes of each stage of the examination entitled to greater weight. lesser weight (Regalado,
2008).
1. Direct examination – To elicit facts about the client’s
cause of action or defense (Riano, 2013).
2. Cross examination

UNIVERSITY OF SANTO TOMAS

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 EVIDENCE
Right of the adverse party when a writing is shown to for further cross-examination where the witness has
a witness already been sufficiently cross-examined, and the
matter on which cross-examination is sought is not
Whenever a writing is shown to a witness, it may be in controversy (Ibid.).
inspected by the adverse party (Sec. 18, Rule 132).
GR: The party who offered the testimony of a witness is
Scope of a cross-examination bound by such testimony.

1. American rule – restricts cross-examination to facts XPNs:

and circumstances which are connected with the 1. In the case of a hostile witness;
matters that have been stated in the direct 2. Where the witness is the adverse party or the
examination of the witness. representative of a juridical person which is the
2. English rule – where a witness is called to testify to a adverse party; and
particular fact, he becomes a witness for all 3. When the witness is not voluntarily offered but is
purposes and may be fully cross-examined upon all required by law to be presented by the proponent,
matters material to the issue, the examination not as in the case of subscribing witnesses to a will
being confined to the matters inquired about in the (Regalado, 2008, citing Fernandez v. Tantoco, 49 Phil.
direct examination. 380, and Sec. 11, Rule 76).

NOTE: Under Philippine jurisdiction, we follow the Recalling the witness

two rules. In general, we follow the English Rule,
which allows the cross-examination to elicit all GR: After the examination of a witness by both sides has
important facts bearing upon the issue (Sec. 6, Rule been concluded, the witness cannot be recalled without
132), but this does not mean that a party by doing so leave of court. The court will grant or withhold leave in
is making the witness his own in accordance with its discretion, as the interests of justice may require (Sec.
Sec. 5 of Rule 132. We follow the American Rule as 9, Rule 132).
to the accused or a hostile witness, who may only be
cross-examined on matters covered by direct XPNs:
examination (Herrera, 1999). 1. The examination has not been concluded; or
2. If the recall of the witness was expressly reserved
Doctrine of Incomplete Testimony by a party with the approval of the court. In these
two cases the recall of a witness is a matter of right
GR: When cross-examination cannot be done or (Regalado, 2008).
completed due to causes attributable to the party who
offered the witness, the incomplete testimony is NOTE: Something more than the bare assertion of the
rendered incompetent and should be stricken from the need to propound additional questions is essential
record (Bachrach Motor Co., Inc. v. CIR, G.R. No. L-26136, before the court's discretion may rightfully be exercised
October 30, 1978; Ortigas, Jr. v. Lufthansa German to grant or deny recall. There must be a satisfactory
Airlines, G.R. No. L-28773, June 30, 1975). showing of some concrete, substantial ground for
instance, that particularly identified material points
XPN: Where the prosecution witness was extensively were not covered in the cross-examination, or that
cross-examined on the material points and thereafter particularly described vital documents were not
failed to appear and cannot be produced despite a presented to the witness whose recall is prayed for, or
warrant of his arrest (People v. Gorospe, G.R. No. 51513, that the cross-examination was conducted in so inept a
May 15, 1984). manner as to result in a virtual absence thereof. Absent
such particulars, to repeat, there would be no foundation
Effect of death or absence of a witness after the for a trial court to authorize the recall of any witness
direct examination by the proponent (People v. Rivera, G.R. No. 98376, August 16, 1991).

1. If the witness was not cross-examined because of LEADING AND MISLEADING QUESTIONS
causes attributable to the cross-examining party
and the witness had always made himself available Leading question
for cross-examination, the direct testimony of the
witness shall remain on record and cannot be It is one which suggests to the witness the answer which
stricken off because the cross-examiner is deemed the examining party desires. A leading question is not
to have waived his right to cross-examine (Dela Paz allowed (Sec. 10, Rule 132).
v. IAC, G.R. No. 71537, September 17, 1987).
2. If the witness was partially cross-examined but died When is a leading question allowed
before the completion of his cross-examination, his 1. On cross-examination;
testimony on direct may be stricken out but only 2. On preliminary matters;
with respect to the testimony not covered by the 3. When there is difficulty in getting direct and
cross-examination (People v. Señeris, G.R. No. L- intelligible answers from a witness who is ignorant,
48883, August 6, 1980). or a child of tender years, or is of feeble mind, or a
3. The absence of a witness is not sufficient to warrant deaf-mute;
the striking out of his testimony for failure to appear 4. Of an unwilling witness or hostile witness;

UNIVERSITY OF SANTO TOMAS

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Impeachment of a witness by evidence of particular
NOTE: A witness may be considered as unwilling or wrongful acts
hostile only if so declared by the court upon
adequate showing of his adverse interest, GR: A witness may not be impeached by evidence of
unjustified reluctance to testify or his having misled particular wrongful acts.
the party into calling him to the witness stand. (Sec.
12, Rule 132) XPN: If it may be shown by the examination of the
witness, or the record of the judgment, that he has been
5. Of a witness who is an adverse party or an officer, convicted of an offense (Sec. 11, Rule 132).
director, or managing agent of a public or private
corporation or of a partnership or association which Impeachment by a party of his own witness
is an adverse party (Sec. 10, Rule 132); or
6. In all stages of examination of a child if the same will GR: The party producing a witness is not allowed to
further the interests of justice (Sec. 20, Rule on impeach his credibility.
Examination of a Child Witness, A.M. No.004-07-SC).
XPN: The witness is an:
Misleading question 1. Unwilling or hostile witness so declared by the
court;
It is one which assumes as true a fact not yet testified to 2. Adverse party; or
by the witness, or contrary to that which he has 3. Officer, director, or managing agent of a public or
previously stated. It is not allowed (Sec. 10, Rule 132) in private corporation or of a partnership or
any type of examination (Riano, 2013). association which is an adverse party (Sec. 12, Rule
132).
METHODS OF IMPEACHMENT
OF ADVERSE PARTY’S WITNESS NOTE: In these instances, such witnesses may be
impeached by the party presenting him in all respects as
Impeachment of a witness if he had been called by the adverse party, except by
evidence of his bad character (Ibid.).
It is a technique employed usually as part of cross-
examination to discredit a witness by attacking his Impeachment of the adverse party as a witness
credibility (Riano, 2013).
That the witness is the adverse party does not
Ways of impeaching an adverse party’s witness necessarily mean that the calling party will not be bound
by the former’s testimony. The fact remains that it was at
1. By contradictory evidence; his instance that his adversary was put on the witness
2. By evidence that the general reputation for truth, stand. He is not bound only in the sense that he may
honesty or integrity of the witness is bad; or contradict him by introducing other evidence to prove a
3. By evidence that the witness has made at other state of facts contrary to what the witness testifies.
times statements inconsistent with his present Unlike an ordinary witness, the calling party may
testimony (Sec. 11, Rule 132). impeach an adverse witness in all respects as if he had
been called by the adverse party, except by evidence of
NOTE: The other modes of impeaching a witness are: his bad character. Under a rule permitting the
1. By involving him during cross-examination in impeachment of an adverse witness, although the calling
contradiction; party does not vouch for the witness’ veracity, he is
2. By showing the impossibility or improbability of his nonetheless bound by his testimony if it is not
testimony; contradicted or remains unrebutted (Gaw v. Chua, G.R.
3. By proving action or conduct of the witness No. 160855, April 16, 2008).
inconsistent with his testimony;
4. By showing bias, interest or hostile feeling against HOW THE WITNESS IS IMPEACHED BY EVIDENCE OF
the adverse party (Herrera, 1999). INCONSISTENT STATEMENTS

Contradictory evidence Prior inconsistent Laying the predicate

statements
Refers to other testimony Refer to statements, oral It means that it is the duty of a party trying to impugn
of the same witness, or or documentary, made by the testimony of a witness by means of prior or
other evidence presented the witness sought to be subsequent inconsistent statements, whether oral or in
by him in the same case, impeached on occasions writing, to give the witness a chance to reconcile his
but not the testimony of other than the trial in conflicting declarations, such that it is only when no
another witness. which he is testifying. reasonable explanation is given by him that he should be
(Regalado, 2008) deemed impeached (People v. Sambahon, G.R. No. 182789,
August 3, 2010).

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 EVIDENCE
Elements of laying the predicate Notable changes by the JAR

1. The alleged statements must be related to the 1. Testimonies are now allowed to be taken and kept
witness including the circumstances of the times in the dialect of the place provided they are
and places and the persons present. If the subsequently translated into English or Filipino.
statements are in writing, they must be shown to These will be quoted in pleadings in their original
him; and version with the English or Filipino translation in
2. He must be asked whether he made such statements parenthesis provided by the party, subject to
and also to explain them if he admits making those counter translation by opposing side.
statements (Riano, 2013). 2. In civil actions, the judicial affidavit rule requires
the parties to lay their cards on the table before pre-
Procedure in impeaching a witness by evidence of trial by submitting the judicial affidavits and
prior inconsistent statements documents of the parties and their witnesses and
serving copies on the adverse party at least 5 days
1. The prior inconsistent statements must be related before the pre-trial. No further stipulations of facts
to him, with the circumstances of the times and are needed at the pre-trial since, by comparing the
places and the persons present; judicial affidavits of the opposing sides, the court
2. The witness must be asked whether he made such will already see what matters they agree and on
statements, and if so, allowed to explain them; and what matters they dispute.
3. If the statements be in writing it must be shown to 3. The court will already take active part in examining
the witness before any question is put to him the witnesses. The judge will no longer be limited to
concerning them (Sec. 13, Rule 132).(Bar 1996) asking clarificatory questions; he can also ask
questions that will determine the credibility of the
Inapplicability of the rule witness, ascertain the truth of his testimony and
elicit the answers that the judge needs for resolving
If the prior inconsistent statement appears in a issues (Associate Justice Roberto Abad, supra).
deposition of the adverse party, and not a mere witness,
that adverse party who testifies may be impeached Applicability of the JAR
without laying the predicate, as such prior statements
are in the nature of admissions of said adverse party It shall be applicable to all actions, proceedings, and
(Regalado, 2008). incidents requiring the reception of evidence before:
1. The MeTCs, MTCCs, MTCs, MCTCs, and the Shari'a
NOTE: The reasons for laying the predicate are: Circuit Courts;
1. To avoid unfair surprise to the adversary;
2. To save time, as an admission by the witness may NOTE: It shall not apply to small claims cases.
make the extrinsic proof necessary; and
3. To give the witness, in fairness to him, a chance to 2. The RTCs and the Shari'a District Courts;
explain the discrepancy (Herrera, 1999). 3. The Sandiganbayan, the CTA, the CA, and the Shari'a
Appellate Courts;
EVIDENCE OF THE GOOD CHARACTER OF A WITNESS 4. The investigating officers and bodies authorized by
the SC to receive evidence, including the IBP; and
Admissibility of evidence on the good moral 5. The special courts and quasi-judicial bodies, whose
character of a witness rules of procedure are subject to disapproval of the
SC, insofar as their existing rules of procedure
Evidence of the good character of a witness is not contravene the provisions of this Rule (Sec. 1, JAR).
admissible until such character has been impeached (Sec.
14, Rule 132). NOTE: While in civil cases (with the exception of small
claims) the application of the JAR is mandatory
JUDICIAL AFFIDAVIT RULE regardless of the amount of money claimed, in criminal
A.M. No. 12-8-8-SC cases, its application is limited to those offenses
punishable by a maximum of 6 years or less, unless the
SCOPE accused agrees to its use.

Effect of the Judicial Affidavit Rule (JAR) in the Requirements of the JAR which the parties are bound
Philippine judicial system to follow

It signals a dramatic shift from a dominantly adversarial The parties shall file with the court and serve on the
system to a mix adversarial and inquisitorial system adverse party, personally or by licensed courier service,
(Associate Justice Roberto Abad, UST Law Review Chief not later than 5 days before pre-trial or preliminary
Justice Andres Narvasa Honorary Lecture, February 15, conference or the scheduled hearing with respect to
2013). motions and incidents, the following:
1. The judicial affidavits of their witnesses, which shall
take the place of such witnesses' direct testimonies;
and

UNIVERSITY OF SANTO TOMAS

407 FACULTY OF CIVIL LAW
 REMEDIAL LAW
2. The parties' documentary or object evidence, if any, 1. He faithfully recorded or caused to be recorded the
which shall be attached to the judicial affidavits and questions he asked and the corresponding answers
marked as Exhibits A, B, C, and so on in the case of that the witness gave; and
the complainant or the plaintiff, and as Exhibits 1, 2, 2. Neither he nor any other person then present or
3, and so on in the case of the respondent or the assisting him coached the witness regarding the
defendant (Sec. 2, JAR). latter's answers (Sec. 4, JAR).

Attachment of the original document as Trial

documentary evidence
After submitting to the court and serving the adverse
A party or a witness may keep the original document or party a copy of the judicial affidavits of the witnesses of a
object evidence in his possession after the same has been party and attaching therein documentary or object
identified, marked as exhibit, and authenticated, but he evidence not later than five days before pre-trial or
must warrant in his judicial affidavit that the copy or preliminary conference or the scheduled hearing with
reproduction attached to such affidavit is a faithful copy respect to motions and incidents trial shall commence as
or reproduction of that original. In addition, the party or follows:
witness shall bring the original document or object 1. The party presenting the judicial affidavit of his
evidence for comparison during the preliminary witness in place of direct testimony shall state the
conference with the attached copy, reproduction, or purpose of such testimony at the start of the
pictures, failing which the latter shall not be admitted presentation of the witness (Sec. 6, JAR);
(Ibid.). 2. The adverse party may move to disqualify the
witness or to strike out his affidavit or any of the
CONTENTS AND PROCEDURE answers found in it on ground of inadmissibility;

Contents of a Judicial Affidavit NOTE: The court shall promptly rule on the motion
and, if granted, shall cause the marking of any
A judicial affidavit shall be prepared in the language excluded answer by placing it in brackets under the
known to the witness and, if not in English or Filipino, initials of an authorized court personnel, without
accompanied by a translation in English or Filipino, and prejudice to the tender of excluded evidence under
shall contain the following: Sec. 40, Rule 132.
1. The name, age, residence or business address, and
occupation of the witness; 3. The adverse party shall have the right to cross-
2. The name and address of the lawyer who conducts examine the witness on his judicial affidavit and on
or supervises the examination of the witness and the exhibits attached to the same (Sec. 7, JAR);
the place where the examination is being held; 4. The party who presents the witness may examine
3. A statement that the witness is answering the him on re-direct (Ibid.);
questions asked of him, fully conscious that he does
so under oath, and that he may face criminal liability NOTE: In every case, the court shall take active part
for false testimony or perjury; in examining the witness to determine his
4. Questions asked of the witness and his credibility as well as the truth of his testimony and
corresponding answers, consecutively numbered, to elicit the answers that it needs for resolving the
that: issues.
a. Show the circumstances under which the
witness acquired the facts upon which he 5. Upon the termination of the testimony of his last
testifies; witness, a party shall immediately make an oral
b. Elicit from him those facts which are relevant offer of documentary evidence, piece by piece, in
to the issues that the case presents; and their chronological order, stating the purpose or
c. Identify the attached documentary and object purposes for which he offers the particular exhibit
evidence and establish their authenticity in (Sec. 8, JAR);
accordance with the Rules of Court; 6. After each piece of exhibit is offered, the adverse
5. The signature of the witness over his printed name; party shall state the legal ground for his objection, if
and any, to its admission, and the court shall
6. A jurat with the signature of the notary public who immediately make its ruling respecting that exhibit
administers the oath or an officer who is authorized (Ibid.).
by law to administer the same (Sec. 3, JAR).
NOTE: Since the documentary or object exhibits form
Duty of the lawyer who conducted the examination part of the judicial affidavits that describe and
of a witness authenticate them, it is sufficient that such exhibits are
simply cited by their markings during the offers, the
The judicial affidavit shall contain a sworn attestation at objections, and the rulings, dispensing with the
the end, executed by the lawyer who conducted or description of each exhibit (Ibid.).
supervised the examination of the witness, to the effect
that:

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 EVIDENCE
APPLICATION TO CRIMINAL ACTIONS that have not been amply covered by the sworn
statement;
The judicial affidavit rule shall apply to all criminal 3. This modified compliance does not apply to criminal
actions: cases where the complainant is represented by a
1. Where the maximum of the imposable penalty does duly empowered private prosecutor. The private
not exceed six years; prosecutor shall be charged in the applicable cases
2. Where the accused agrees to the use of judicial the duty to prepare the required judicial affidavits
affidavits, irrespective of the penalty involved; or of the complainant and his or her witnesses and
3. With respect to the civil aspect of the actions, cause the service of the copies of the same upon the
whatever the penalties involved are (Sec. 9, JAR). accused (AM No 12-8-8-SC, Judicial Affidavit Rule,
January 8, 2012).
Q: Can a party filing a criminal action cognizable by
the Regional Trial Court be mandated to follow the EFFECT OF NON-COMPLIANCE
JAR? WITH THE JUDICIAL AFFIDAVIT RULE

A: No. The jurisdiction of the RTC in criminal cases 1. A party who fails to submit the required judicial
includes offenses where the imposable penalty exceeds 6 affidavits and exhibits on time shall be deemed to
years, thus, as a rule the JAR has no application except have waived their submission. The court may,
when the accused agrees to its use. however, allow only once the late submission of the
same provided, the delay is for a valid reason, would
Submission by the prosecution of the judicial not unduly prejudice the opposing party, and the
affidavit defaulting party pays a fine of not less than
Php1,000.00 nor more than Php5,000.00, at the
The prosecution shall submit the judicial affidavits of its discretion of the court;
witnesses not later than five days before the pre-trial, 2. The court shall not consider the affidavit of any
serving copies of the same upon the accused. The witness who fails to appear at the scheduled hearing
complainant or public prosecutor shall attach to the of the case as required. Counsel who fails to appear
affidavits such documentary or object evidence as he without valid cause despite notice shall be deemed
may have, marking them as Exhibits A, B, C, and so on. No to have waived his client's right to confront by
further judicial affidavit, documentary, or object cross-examination the witnesses there present;
evidence shall be admitted at the trial (Ibid.). 3. The court shall not admit as evidence judicial
affidavits that do not conform to the content
Q: Is it likewise mandatory on the part of the accused requirements of Sec. 3 and the attestation
to submit a judicial affidavit? requirement of Sec. 4 above. The court may,
however, allow only once the subsequent
A:No. If the accused desires to be heard on his defense submission of the complaint replacement affidavits
after receipt of the judicial affidavits of the prosecution, before the hearing or trial provided the delay is for a
he shall have the option to submit his judicial affidavit as valid reason and would not unduly prejudice the
well as those of his witnesses to the court within ten opposing party and provided further, that public or
days from receipt of such affidavits and serve a copy of private counsel responsible for their preparation
each on the public and private prosecutor, including his and submission pays a fine of not less than
documentary and object evidence previously marked as Php1,000.00 nor more than Php5,000.00, at the
Exhibits 1, 2, 3, and so on. These affidavits shall serve as discretion of the court (Sec. 10, JAR).
direct testimonies of the accused and his witnesses when
they appear before the court to testify (Ibid.). EFFECT ON OTHER RULES

Q: The JAR took effect last January 1, 2013, but with As to Rules of Court and Rules of Procedure
some modification as to its applicability to criminal governing investigating officers and bodies
cases. What are these modifications? authorized by the Supreme Court to receive evidence

A: The JAR is modified until December 31, 2013 only They are repealed or modified insofar as they are
with respect to actions filed by public prosecutors, inconsistent with the provisions of the Judicial Affidavit
subject to the following conditions: Rule (Sec. 11, JAR).
1. For the purpose of complying with the Judicial
Affidavit Rule, public prosecutors in the first and As to Rules of procedure governing quasi-judicial
second level courts shall use the sworn statements bodies which are inconsistent with it
that the complainant and his or her witnesses
submit during the initiation of the criminal action They are thereby disapproved (Ibid.).
before the office of the public prosecutor or directly
before the trial court;
2. Upon presenting the witness, the attending public
prosecutor shall require the witness to affirm what
the sworn statement contains and may only ask the
witness additional direct examination questions

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ADMISSIONS AND CONFESSIONS Offer of compromise as admission of liability

Admissions vs. Confessions Civil Case Criminal Case

It is NOT an admission GR: It may be received in
Admission Confession of any liability and is evidence as an implied
A statement of fact which A statement of fact which NOT admissible admission of guilt (Ibid.).
does not involve an involves an against the offeror
acknowledgment of guilt acknowledgment of guilt (Sec. 27, Rule 130). XPNs:
or liability or liability 1. In quasi-offenses where
there is no criminal
May be made by third Can be made only by the intent (negligence),
persons and in certain party himself and, in some such as reckless
cases, are admissible instances, are admissible imprudence;
against a party against his co-accused 2. In criminal cases
allowed by law to be
Applies to both criminal Applies only to criminal compromised such as:
and civil cases cases a. NIRC (Sec. 7c) – The
CIR has the power
May be express or tacit Must be express to compromise
minor criminal
(Regalado, 2008) violations as may be
determined by the
NOTE: An admission, in general sense, includes Secretary of
confessions, the former being a broader term because, Finance;
accordingly, a confession is also an “admission… by the b. LGC (Sec. 408) –
accused of the fact charged against him or of some fact Allowed in minor
essential to the charge” (4 Wigmore, Sec. 1050). A offenses whose
confession is a specific type of admission which refers penalties do not
only to an acknowledgement of guilt. As used, the term exceed one year;
admission refers to an acknowledgement of facts which, c. RPC (Art. 266-C) –
although may be incriminating, falls short of an In cases of marital
admission of guilt (Riano, 2013). rape, where
subsequent
Judicial admission vs. Extrajudicial admission forgiveness by the
wife extinguishes
Judicial Admissions Extrajudicial Admissions the criminal action
Those made in the course Those made out of court or or penalty (Suarez
of the proceeding in the in a judicial proceeding and De la Banda,
same case other than the one under 2006).
consideration
Do not require proof and Regarded as evidence and NOTE: No compromise is valid in the following cases:
may be contradicted only must be offered as such, 1. Civil status of persons;
by showing that it was otherwise the court will 2. Validity of a marriage or legal separation;
made through palpable not consider it in deciding 3. Any ground for legal separation;
mistake or that no such the case. 4. Future support;
admission was made 5. Jurisdiction of courts;
(Sec. 4, Rule 129). 6. Future legitime;
Judicial admissions need Requires formal offer for it 7. Habeas corpus; and
not be offered in evidence to be considered 8. Election cases (Herrera, 1999).
since it is not evidence. It
is superior to evidence and Q: What is the underlying reason for the adoption of
shall be considered by the the rule against the admission of an offer of
court as established. compromise in civil cases? (1997 Bar Question)
Conclusive upon the Rebuttable
admitter A: The reason for the rule against the admission of an
offer of compromise in civil cases as an admission of any
liability is that parties are encouraged to enter into
Admissible even if self- Not admissible if self-
compromises. Courts should endeavor to persuade the
serving serving
litigants in a civil case to agree upon some fair
compromise (Art. 2029, NCC). During pre-trial, courts
Subject to cross- Not subject to cross-
should direct the parties to consider the possibility of an
examination examination
amicable settlement (Sec. 2(a), Rule 18).

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 EVIDENCE
Q: Berting was accused of having raped Lisa. Rule on RES INTER ALIOS ACTA RULE
the admissibility of an offer of Berting to marry Lisa.
(1998 Bar Question) Res inter alios acta alteri nocere non debet

A: Berting’s offer to marry Lisa is admissible in evidence This principle literally means “things done between
as an implied admission of guilt because rape cases are strangers ought not to injure those who are not parties
not allowed to be compromised (Sec. 27, Rule 130). to them” (Black’s Law Dictionary, 5th Ed.; Dynamic
Signmaker Outdoor Advertising Services, Inc. v. Potongan,
Q: Lloydie, while driving his car, ran over Bea. G.R. No. 156589, June 27, 2005).
Lloydie visited Bea at the hospital and offered to pay
for her hospitalization expenses. After the filing of Reason for the rule on res inter alios acta
the criminal case against Lloydie for serious physical
injuries through reckless imprudence, Lloydie’s On principle of good faith and mutual convenience, a
insurance carrier offered to pay for the injuries and man’s own acts are binding upon himself and are
damages suffered by Bea. The offer was rejected evidence against him. So are his conduct and
because Bea considered the amount offered as declarations. It would not only be rightly inconvenient
inadequate. but also manifestly unjust, that a man should be bound
1. Is the offer by Lloydie to pay the hospitalization by the acts of mere unauthorized strangers; and if a
expenses of Bea admissible in evidence? party ought not to be bound by the acts of strangers,
2. Is the offer by Lloydie’s insurance carrier to pay neither ought their acts or conduct be used as evidence
for the injuries and damages of Bea admissible against him (People v. Guittap, G.R. No. 144621, May 9,
in evidence? (1997 Bar Question) 2003).

A: Two (2) branches of res inter alios acta rule

1. It is not admissible in evidence to prove his guilt in
both the civil and criminal cases (Sec. 27(4), Rule 1. The rights of a party cannot be prejudiced by an act,
130). declaration, or omission of another (Sec. 28, Rule
2. It is irrelevant. The obligation of the insurance 130); (Bar 2003)
company is based on the contract of insurance and 2. Evidence that one did or did not do a certain thing at
is not admissible in evidence against the accused one time is not admissible to prove that he did or
because it was not offered by the accused but by the did not do the same or similar thing at another time
insurance company which is not his agent. (Sec. 34, Rule 130).

Admissibility of plea or offer (Bar 2008) Exceptions to the res inter alios acta rule (first
branch):
Offer or Plea Admissibility
Plea of guilty later Not admissible in evidence 1. Admission by a co-partner or agent (Sec. 29, Rule
withdrawn by the against the accused who 130);
accused made the plea 2. Admission by a co-conspirator (Sec. 30, Rule 130);
and
Offer by the accused to Not admissible in evidence 3. Admission by privies (Sec. 31, Rule 130).
plead guilty to a lesser against the accused who
offense but unaccepted by made the offer NOTE: The rule has reference to extrajudicial
prosecution declarations. Hence, statements made in open court by a
witness implicating persons aside from him are
Offer to pay or payment Not admissible in evidence admissible as declarations from one who has personal
of medical, hospital or as proof of civil or criminal knowledge of the facts testified to (Riano, 2013).
other expenses liability for the injury
occasioned by injury (Suarez and De la Banda, NOTE: The testimony of the accused against his co-
(Good Samaritan Rule) Evidence: A Lawyer’s accused in open court is considered as admissibile
Companion, 2006 ed.) testimony and not subject of the res inter alios acta rule
since such testimony is subject to cross examination.
Unaccepted offer
Q: Mau sue Kenstar Travel Corporation for breach of
An offer in writing to pay a particular sum of money or to contract on the ground that when she went on a
deliver a written instrument or specific personal European tour, there was no European tour
property is, if rejected without valid cause, equivalent to manager, the Filipino guide was a first timer, and the
the actual production and tender of the money, hotels where they were billeted were not first class.
instrument, or property (Sec. 35, Rule 130). Kenstar contended that the tour was satisfactory
because out of 18 participants, only Mau actually
complained. Can the fact that the other participants
in the tour filed no case against Kenstar be used as
evidence to show that B has no cause of action?

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A: No. Rule 130, Sec. 28 of the Rules of Court provides
that the rights of a party cannot be prejudiced by an act, Classifications of Admissions
declaration or omission of another. The failure of the Express It is a positive statement or act.
other participants to file and action should not prejudice
Mau (Geraldez v. Court of Appeals, G.R. No. 108253, Implied It is one which may be inferred
February 23, 1994). from the declarations or acts of a
person.
ADMISSION BY A PARTY
Judicial When made in the course of a
The act, declaration or omission of a party as to a judicial proceeding.
relevant fact may be given in evidence against him (Sec.
26, Rule 130). Extrajudicial When made out of court or even in
a proceeding other than the one
Requisites for the admissibility of an admission under consideration.

1. The act, declaration or omission must have been Adoptive It is a party’s reaction to a
made by a party or by one by whom he is legally statement or action by another
bound; person when it is reasonable to
2. The admission must be as to a relevant fact; and treat the party’s reaction as an
3. The admission may only be given in evidence admission of something stated or
against him (Ibid.; Herrera, 1999). implied by the other person. A
third person’s statement becomes
Self-serving declaration the admission of the party
embracing or espousing it.
It is one which has been made extra-judicially by the Adoptive admission may occur
party to favor his interest. It is not admissible in when a party:
evidence because they are inherently untrustworthy, and 1. Expressly agrees to or
would open the door to fraud and fabrication of concurs in an oral statement
testimony (Lichauco v. Atlantic Gulf and Pacific Co. of made by another;
Manila, 84 Phil. 330; People v. Demiar, 108 Phil. 651). 2. Hears a statement and later
on essentially repeats it;
NOTE: Self-serving evidence are inadmissible because 3. Utters an acceptance or
the adverse party is not given the opportunity for cross- builds upon the assertion of
examination, and their admission would encourage another;
fabrication of testimony (Hernandez v. CA, G.R. No. 4. Replies by way of rebuttal to
104874, December 14, 1993). some specific points raised by
another but ignores further
Statements in affidavits are not sufficient to prove the points which he or she has
existence of agricultural tenancy. It is self-serving. It will heard the other make; or
not suffice to prove consent of the owner. Independent 5. Reads and signs a written
evidence is necessary (Rodriguez v. Salvador, G.R. No. statement made by another
171972, June 8, 2011). (Republic v. Kendrick
Development Corp., G.R. No.
Q: After working as a laborer for 43 years, A resigned 149576, August 8, 2006).
from Rufina Patis Factory. Thereafter, he availed of (Riano, 2013)
his pension from the SSS and executed an affidavit
stating that he was never re-employed. However, ADMISSION BY A THIRD PARTY
when he filed a claim for retirement benefits from
his employer before the NLRC, he alleged that he GR: The act, declaration or omission made out of court of
continued working for Rufina Patis Factory for 4 a party as to a relevant fact may be given in evidence
more years. Can Rufina Patis Factory use A’s affidavit against him but may not be given in evidence against
executed before the SSS as an admission against his another person.
interest?
XPN: The act or omission of one party made out of court
A: Yes. The document is the best evidence which affords may be used as evidence against another when its
greater certainty of the facts in dispute. While the admission is made by:
affidavit may have facilitated the release of the 1. A partner;
retirement benefits from SSS, hence, beneficial to him at 2. An agent;
that time, it may still be considered as admission against 3. A joint owner;
interest since the disserving quality of the admission is 4. A joint debtor;
judged as of the time it is used or offered in evidence and 5. A person jointly interested with the party;
not when such admission was made. Thus, it matters not 6. A conspirator;
that the admission was self-serving at the time it was 7. A privy or successor in interest (Suarez and De la
made, so long as it is against A’s present claim (Rufina Banda, 2006).
Patis Factory v. Alusitain, G.R. No. 146202, July 14, 2004).

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 EVIDENCE
Q: Francisco was charged with violating PD No. 1612 owned 90% of the Swiss bank deposits and only 10%
or the Anti Fencing Decree. Among the evidence belongs to the estate of the late President Marcos.
submitted against him was the testimony of Jovita in The other heirs also made separate admissions in
a previous criminal case wherein the accused their pleadings. What is the value of these
therein, Pacita, was convicted of theft and where she admissions?
stated that Francisco bought stolen jewelries from
her. Can the admission in the previous case be used A: The individual and separate admissions of each
against Francisco? respondent bind all of them pursuant to Sec. 29, Rule
130 of the Rules of Court. The declaration of a party is
A: No. It bears stressing that Francisco was not a party to admissible against a party whenever a “privity of estate”
the previous criminal case where Pacita was the accused. exists between the declarant and the party. It generally
The rule is that the acts or declarations of a person are denotes a succession of rights. Without doubt, privity
not admissible against a third party. Only parties to a exists among the respondents in this case. Where several
case are bound by a judgment of the trial court co-parties exist who are jointly interested in the subject
(Francisco v. People, G.R. No. 146584, July 12, 2004). matter of the controversy, the admission of one is
Without presenting Jovita to testify on her admission competent against all (Republic v. Sandiganbayan, G.R.
during the previous criminal case, even if made in a No. 152154, July 15, 2003).
previous judicial proceeding, it remains an extrajudicial
admission without any effect, insofar as the present ADMISSION BY A CONSPIRATOR
action against Francisco is concerned.
The act or declaration of a conspirator relating to the
ADMISSION BY A CO-PARTNER OR AGENT conspiracy and during its existence, may be given in
evidence against the co-conspirator after the conspiracy
The act or declaration of a partner or agent of the party is shown by evidence other than such act of declaration
within the scope of his authority and during the (Sec. 30, Rule 130).
existence of the partnership or agency, may be given in
evidence against such party after the partnership or Conspiracy
agency is shown by evidence other than such act or
declaration. The same rule applies to the act or A conspiracy exists when two or more persons come to
declaration of a joint owner, joint debtor, or other person an agreement concerning the commission of a felony and
jointly interested with the party (Sec. 29, Rule 130). decide to commit it (Herrera, 1999).

Requisites for an admission of a partner to bind his NOTE: Once conspiracy is proven, the act of one is the
co-partners or for an agent to bind his principal act of all. The statement therefore of one may be
admitted against the other co-conspirators as an
1. The act or declaration of a partner or agent of the exception to the rule of res inter alios acta (Riano, 2013).
party must be within the scope of his authority;
2. The admission was made during the existence of the Requisites of an admission by a conspirator
partnership or agency; and
3. The existence of the partnership or agency is proven 1. The declaration or act be made or done during the
by independent evidence other than such act or existence of the conspiracy;
declaration (Ibid.). The Articles of Incorporation or a 2. The declaration or act must relate to the purpose
Special Power of Attorney may be presented for and object of the conspiracy; and
such purpose (Suarez and De la Banda, 2000). 3. The conspiracy must be shown by evidence other
than the declaration or act (evidence aliunde) (Sec.
NOTE: The same rule applies to an act or declaration of a 30, Rule 130).
joint owner, joint debtor or other person jointly
interested with the party (Sec. 29, Rule 130). NOTE: This rule applies only to extrajudicial acts or
admission and not to testimony at trial where the party
Dissolved Partnership adversely affected has the opportunity to cross-examine
the witness (People vs. Baharan, G.R. No. L-188314,
GR: Admissions made after a partnership has been January 10, 2011).
dissolved do not fall within the exception because such
are made when the partnership ceased to exist. Q: A was convicted of robbery with homicide. Among
the evidence used to convict her was the
XPN: Where the admissions are made in connection with extrajudicial confession of her co-accused, an alleged
the winding up of the partnership affairs, said co-conspirator, which confession was made with the
admissions are still admissible as the partner is acting as assistance of counsel. Can such admission be used
an agent of his co-partner in said winding up (Regalado, against A?
2008).
A: No. In order for such admission to be admissible in
Q: The Republic of the Philippines filed a forfeiture evidence, there must be independent evidence aside
case against the heirs of the late former President from the extrajudicial confession to prove conspiracy.
Marcos. In one of her manifestations before the There being no independent evidence to prove
Sandiganbayan, Imelda Marcos admitted that she conspiracy, A’s culpability was not sufficiently

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413 FACULTY OF CIVIL LAW
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established (People v. Guittap, G.R. No. 144621, May 9,
2003). A: No. The admission of a former owner of a property
must have been made while he was the owner thereof in
Extrajudicial admissions made after the conspiracy order that such admission may be binding upon the
had terminated present owner. Hence, Lucero’s act of executing the 1968
document have no binding effect on Del Monte, the
GR: Extrajudicial admissions made by a conspirator after ownership of the land having passed to it in 1964
the conspiracy had terminated and even before trial are (Gevero v. IAC, G.R. No. 77029, August 30, 1990).
not admissible against the co-conspirator.
ADMISSION BY SILENCE
XPNs:
1. If made in the presence of the co-conspirator who There is admission by silence when a party does or says
expressly or impliedly agreed therein; nothing when he hears or observes an act or declaration
2. Where the facts in said admission are confirmed in made in his presence when such act or declaration is
the individual extrajudicial confessions made by the such as naturally to call for action or comment if not true,
co-conspirator after their apprehension; and when proper and possible for him to do so. Such may
3. As a circumstance to determine the credibility of the be given in evidence against him (Sec. 32, Rule 130).
witness; or
4. As circumstantial evidence to show the probability Requisites of an admission by silence
of the co-conspirator’s participation in the offense
(Regalado, 2008). 1. He must have heard or observed the act or
declaration of the other person;
When extrajudicial admission becomes a judicial 2. He must have had the opportunity to deny it (People
admission v. Ranario, 49 Phil. 220);
3. He must have understood the statement;
While it is true that statements made by a conspirator 4. He must have an interest to object, such that he
against a co-conspirator are admissible only when made would naturally have done so, if the statement was
during the existence of the conspiracy, if the declarant not true;
repeats the statement in court, his extrajudicial 5. The facts were within his knowledge; and
confession becomes a judicial admission, making the 6. The fact admitted or the inference to be drawn from
testimony admissible as to both conspirators (People v. his silence is material to the issue (People v. Paragsa,
Baharan, G.R. No. 188314, January 10, 2011). G.R. No. L-44060, July 20, 1978; Sec. 32, Rule 130;
Regalado, 2008).
ADMISSION BY PRIVIES
NOTE: The rule on admission by silence does not apply
Where one derives title to property from another, the when a person is under an official investigation. For the
act, declaration, or omission of the latter, while holding silence of a person under a custodial investigation for the
the title, in relation to the property, is evidence against commission of an offense should not be construed as an
the former (Sec. 31, Rule 130). admission by silence because a person has the right to
remain silent and to be informed of that right (Sec. 12,
Privies Art. III, 1987 Constitution; Riano, 2009). However, if it is
not the police investigators who confronted the accused
They refer to persons who are partakers or have an but the owner of a carnapped vehicle, the silence of one
interest in any action or thing, or any relation to another after being implicated by the other accused serves as an
(Black’s Law Dictionary, 5th Ed.). admission by silence as he did not refute the statements
of his co-accused despite having heard of them (People v.
Requisites of an admission by privies Garcia, Jr., G.R. No. 138470, April 1, 2003).

1. One (successor in interest) derives title to property Principle of adoptive admission

from another (predecessor in interest) through any
legal means of transfer It is a party’s reaction to a statement or action by
2. A statement, act or declaration is made by the another person when it is reasonable to treat the party’s
predecessor in interest in relation to the property reaction as an admission of something stated or implied
and while holding the title thereof by the other person. The basis for admissibility of
3. Said statement, act or declaration is evidence admissions made vicariously is that arising from the
against his successor in interest (Sec. 31, Rule 130; ratification or adoption by the party of the statements
Suarez and De la Banda, 2006). which the other person had made (Estrada v. Desierto,
G.R. Nos. 146710-15, April 3, 2001).
Q: Del Monte Development Corporation filed a case
to be adjudged owner of a piece of land against NOTE: One good example of adoptive admission is the
Ababa claiming that it acquired a lot from Lucero in alleged admissions made by President Estrada when his
1964. As a defense, Ababa presented a document options had dwindled when, according to the Angara
executed by Lucero in 1968 to settle the controversy. Diary, the Armed Forces withdrew its support from him
Can the document bind Del Monte as successor in as President and Commander-in-Chief. Thus, Angara had
interest of Lucero? to allegedly ask Senate President Pimentel to advise

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 EVIDENCE
Estrada to consider the option of “dignified exit or upon the confessant and is not
resignation.” Estrada did not object to the suggested admissible against his co-accused. It
option but simply said he could never leave the country. is governed by Sec. 33 of Rule 130
According to the court, his silence on this and other (Regalado, 2008).
related suggestions can be taken as adoptive admissions
by him (Ibid.). NOTE: If the accused admits having
committed the act in question but
CONFESSIONS alleges a justification therefor, such
as absence of criminal intent, the
The declaration of an accused acknowledging his guilt of same is merely an admission (Ibid.).
the offense charged, or of any offense necessarily
included therein, may be given in evidence against him Admissibility of extrajudicial confessions
(Sec. 33, Rule 130).
GR: An extrajudicial confession is not admissible against
Requisites for the admissibility of a confession the confessor’s co-accused. Said confession is hearsay
evidence and violative of the res inter alios acta rule.
1. It must involve an express and categorical
acknowledgement of guilt (U.S. v. Corrales, 28 Phil. XPN: It may be admitted in evidence against his co-
362); accused in the following cases:
2. Facts admitted must be constitutive of a criminal 1. In case of implied acquiescence of the co-accused to
offense (U.S. v. Flores, 26 Phil. 262); the extrajudicial confession;
3. It must have been given voluntarily (People v. 2. In case of interlocking confessions;
Nishishima, 57 Phil. 26); 3. Where the accused admitted the facts stated by the
4. It must have been intelligently made (Bilaan v. Cusi, confessant after being apprised of such confession;
G.R. No. L-18179, June 29, 1962), the accused 4. If they are charged as co-conspirators of the crime
realizing the importance or legal significance of his which was confessed by one of the accused and said
act (U.S. v. Agatea, 40 Phil. 596); and confession is used only as corroborating evidence;
5. There must have been no violation of Sec. 12, Art. 5. Where the confession is used as circumstantial
III, 1987 Constitution (Regalado, 2008). evidence to show the probability of participation by
the co-conspirator;
NOTE: A confession to a person, who is not a police 6. When the confessant testified for his co-defendant;
officer, is admissible in evidence. The declaration and
acknowledging his guilt of the offense charged, or of 7. Where the co-conspirator’s extrajudicial confession
any offense necessarily included therein, may be is corroborated by other evidence on record
given in evidence against the declarant. Such (Regalado, 2008).
admissions are not covered by Secs. 12 (1) and (3),
Article III, 1987 Constitution, because they were not Q: The mutilated cadaver of a woman was discovered
extracted while he was under custodial near a creek. Due to witnesses attesting that he was
investigation (People v. Davao, et al., G.R. No. 174660, the last person seen with the woman when she was
May 30, 2011). still alive, Carlito was arrested within 5 hours after
the discovery of the cadaver and brought to the
6. It must be in writing and signed by such person in police station. The crime laboratory determined that
the presence of his counsel or in the latter’s absence, the woman had been raped. While in police custody,
upon a valid waiver and in the presence of any of Carlito broke down in the presence of an assisting
the parents, elder brothers and sisters, his spouse, counsel and orally confessed to the investigator that
the municipal mayor, the municipal judge, district he had raped and killed the woman, detailing the
school supervisor or priest or minister of the gospel acts he had performed up to his dumping of the body
as chosen by him (Sec. 2(d), R.A. 7438). near the creek. He was genuinely remorseful. During
the trial, the State presented the investigator to
Classification of Confessions testify the oral confession of Carlito. Is the oral
Judicial One made by the accused before an confession admissible as evidence of guilt? (2008
confession open court in which the case is Bar Question)
pending and in the course of legal
proceedings therein and, by itself, A: No. The oral confession is not admissible as evidence
can sustain conviction and is of guilt. The confession is in the nature of an extrajudicial
admissible against one’s co-accused. confession before an investigator while under custodial
It is governed by Secs. 1, 3 & 4 of Rule investigation. Hence, the statutory provisions under R.A.
116. 7438 (Sec. 2(d)) will have to be complied with.

Extrajudicial One made in any other place or Under said law, any extrajudicial confession made by a
confession occasion other than the court where person arrested, detained, or under custodial
the case is pending and cannot investigation shall be in writing and signed by such
sustain a conviction unless person in the presence of his counsel. An oral confession
corroborated by evidence of corpus does not comply with the mandatory provisions of the
delicti. It is generally binding only law. Under R.A. 7438, the confession is inadmissible in

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evidence in any proceeding (Sec. 2(d), R.A. 7438; Riano, SIMILAR ACTS AS EVIDENCE
2013). (2nd Branch of the Res Inter Alios Acta Rule)
(Sec. 34, Rule 130)
Requirements for an admission of guilt of an accused
during a custodial investigation to be admitted in GR: Evidence that one did or did not do a certain thing at
evidence one time is not admissible to prove that he did or did not
do the same or similar thing at another time (Sec. 34,
1. The admission must be voluntary (Sec. 12(1), 1987 Rule 130). This is also referred to as the “Propensity
Constitution); Rule.”(Bar 2002)
2. The admission must be in writing (R.A. 7438);
3. The admission must be made with the assistance of XPNs: Evidence of similar or previous acts may be
competent, independent counsel (Sec. 12, 1987 received to prove the following:
Constitution); 1. Specific intent;
4. The admission must be express (People vs. Prinsipe, 2. Knowledge;
G.R. No. 135862, May 2, 2002); 3. Identity;
5. In case the accused waives his rights to silence and 4. Plan;
to counsel, such waiver must be in writing, executed 5. System;
with the assistance of competent, independent 6. Scheme;
counsel (R.A. 7438). 7. Habit;
8. Custom;
Doctrine of Interlocking Confessions 9. Usage; and
10. The like (Ibid.).
It states that extrajudicial confessions independently
made without collusion which are identical with each Purpose of the rule
other in their essential details and corroborated by other
evidence against the persons implicated, are admissible Evidence of similar acts or occurrences compels the
to show the probability of the latter’s actual participation defendant to meet allegations that are not mentioned in
in the commission of the crime (People v. Mulit, G.R. No. the complaint, confuses him in his defense, raises a
181043, October 8, 2008). variety of relevant issues, and diverts the attention of the
court from the issues immediately before it. Hence, the
Q: 4 of the 6 suspects in the crime of kidnapping with evidentiary rule guards the practical inconvenience of
double murder executed separate extrajudicial trying collateral issues and protracting the trial, and
statements confessing to the crime and implicating prevents surprise or other mischief prejudicial to
the others. The statements were independently litigants (Cruz v. CA, G.R. No. 126713, July 27, 1998).
executed but are identical with each other in their
material details. There are also distinct similarities Q: Accused was charged with 2 counts of kidnapping.
in the narration of events leading to the killings. Is Since the 2 incidents happened almost
the extrajudicial confession admissible against the simultaneously, the cases were consolidated and
others? joint trial ensued. In the first case, accused tied the
hands of the 2 victims and pointed their guns at
A: Yes. The rule that an extrajudicial statement is them. In the second case, however, it appears that
evidence only against the person making it, also the 2 victims were not physically threatened or tied.
recognizes various exceptions. One such exception is the Can evidence in the first case be used in the second
rule on interlocking confessions where several to prove that accused had the intent to deprive the
extrajudicial statements had been made by several victims of liberty?
persons charged with an offense and there could have
been no collusion with reference to said several A: Yes. The evidence shows the intent of the accused.
confessions bu the fact that the statements are in all That the victim’s hands were not tied nor guns poked at
material respects identical, is (1) confirmatory of the their sides when they were taken by the accused in the
confession of the co-defendants and is admissible against second case do not conclusively preclude the deprivation
other persons implicated therein. (2)They are also of liberty. The circumstances surrounding the taking of
admissible as circumstantial evidence against the person the victims in the first case, particularly the previous
implicated therein to show the probability of the latter’s conduct of accused in kidnapping them, plainly
actual participation in the commission of the crime and demonstrates their intent to likewise deprive the victims
(3) may likewise serve as corroborative evidence if it is in the other case, of their liberty (People v. Dadles, G.R.
clear from other facts and circumstances that other No. 118620-21, September 1, 1997).
persons had participated in the perpetration of the crime
charged and proved (People v. Lising, G.R. No. 106210-11, HEARSAY RULE
January 30, 1998).
It states that a witness can testify only to those facts
which he knows of based on his personal knowledge or
those which are derived from his own perception (Sec.
36, Rule 130).(Bar 2003, 2007)

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 EVIDENCE
It also includes all assertions where, though derived In criminal cases, its admission would be a violation of
from personal knowledge, the adverse party is not given the constitutional provision that the accused shall enjoy
an opportunity to cross-examine (Herrera, 1999). the right of being confronted with the witnesses
testifying against him and to cross-examine them.
Hearsay evidence can be defined as evidence that is Moreover, the court is without opportunity to test the
derived from the testimony of a witness who has not credibility of hearsay statements by observing the
personal knowledge of the events being inquired into. demeanor of the person who made them (People v.
(Bar 1999) Pruna, G.R. No. 138471, October 10, 2002).

Elements of hearsay evidence Double hearsay

1. There must be an out-of-court statement; and It is a testimony of a person with respect to what was
2. The statement made out of court, is repeated and told him by one who was not an eyewitness to the crime
offered by the witness in court to prove the truth of but who obtained knowledge thereof only from the
the matters asserted by the statement (Riano, 2013). alleged victim (People v. Manhuyod, Jr., G.R. No. 124676,
May 20, 1998).
NOTE: Newspaper clippings are hearsay and of no
evidentiary value at all whether objected to or not, Q: Romeo is sued for damages for injuries suffered
unless offered for a purpose other than proving the truth by the plaintiff in a vehicular accident. Julieta, a
of the matter asserted (Feria v. CA, G.R. No. 122954, witness in court, testifies that Romeo told her that he
February 15, 2000). heard Antonio, a witness to the accident, gives an
excited account of the accident immediately after its
Medical certificates cannot be admitted in the absence of occurrence. Is Julieta’s testimony admissible against
the testimony of the physician who examined the Romeo over proper and timely objection? Why?
complaint for alleged torture wounds. (2002 Bar Question)

Affidavits are inadmissible unless the affiants themselves A: No, because while the excited account of Antonio, a
are placed in the witness stand to testify therefrom. witness to the accident, was told to Romeo, it was only
Romeo who told Julieta about it, which makes it hearsay.
Statements made through an interpreter
Classification of out-of-court statements:
GR: Statements made through an interpreter are
considered hearsayif a witness is offered to testify to the 1. Hearsay – Its probative force depends, in whole or in
statements of another person, spoken in a language not part, on the competency and credibility of some
understood by him, but translated for him by an persons other than the witness by whom it is sought
interpreter, such witness is not qualified, because he to produce it. It is inadmissible as evidence when
does not speak from personal knowledge. All that he can the purpose for introducing the out-of-court
know as to the testimony is from the interpretation statement is to prove the truth of the facts asserted
thereof which is in fact given by another person. therein (Estrada v. Desierto, supra).
2. Non-hearsay – This occurs when the purpose for
XPNs: In cases where the interpreter had been selected: introducing the statement is not to prove the truth
1. By common consent of the parties endeavoring to of the facts asserted therein but only the making of
converse; the statements and are admissible in evidence when
2. By a party against whom the statements of the the making of the statement is relevant. These are
interpreter where offered in evidence (Principal- the so-called independently relevant statements
Agent Rule). (Herrera, 1999).
3. Exceptions to the hearsay rule – Those which are
Q: Counsel Oliva objected to a question posed by hearsay but are considered as exceptions to the
opposing Counsel Diesta on the grounds that it was hearsay rule and are therefore admissible (Secs. 37-
hearsay and it assumed a fact not yet established. 47, Rule 130).
The judge banged his gavel and ruled by saying
“Objection Sustained”. Can Counsel Diesta ask for a Independently relevant statements
reconsideration of the ruling? (2012 Bar Question)
These are statements which are relevant independently
A: Yes, Counsel Diesta may ask the Judge to specify the of whether they are true or not. They are neither
ground/s relied upon for sustaining the objection and hearsay nor an exception to the hearsay rule as the
thereafter move its reconsideration thereof (Sec. 38, Rule purpose thereof is not to prove the truth of the
132). declaration or document (Estrada v. Desierto, supra).It
merely proves the fact that a statement was made and
REASON FOR EXCLUSION not the truth of the fact asserted in the statement. (Bar
OF HEARSAY EVIDENCE 1999, 2005, 2009, 2010)

There is no opportunity to cross-examine the outside Classification of independently relevant statements

declarant.
1. Those statements which are the very facts in issue;

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2. Those statements which are circumstantial evidence are deemed admissible by reason of necessity and
of the fact in issue. It includes the following: trustworthiness (Riano, 2013).
a. Statements of a person showing his state of
mind, that is, his mental condition, knowledge, Reason for admissibility
belief, intention, ill-will and other emotions;
b. Statements of a person which show his physical They are admissible by reason of relevancy, necessity
condition, as illness and the like; and trustworthiness (Estrada vs. Desierto, supra).
c. Statements of a person from which an inference
may be made as to the state of mind of another, DYING DECLARATION
i.e., the knowledge, belief, motive, good or bad
faith, etc. of the latter; The declaration of a dying person, made under the
d. Statements which may identify the date, place consciousness of an impending death, may be received in
and person in question; and any case wherein his death is the subject of inquiry, as
e. Statements showing the lack of credibility of a evidence of the cause and surrounding circumstances of
witness (Ibid.). such death (Sec. 37, Rule 130). (Bar 1991, 1992, 1993,
1996, 1998, 1999, 2007, 2010)
Q: Annie overheard Billy call Rocky a thief. In an
action for defamation filed by Rocky against Billy, is These are ante mortem statements made by a person
the testimony of Annie offered to prove the fact of after the mortal wound has been inflicted under the
utterance i.e., that Billy called Rocky a thief, belief that the death is certain, stating the fact
admissible in evidence? Explain. (1999 Bar concerning the cause of and the circumstances
Question) surrounding the attack (Herrera, 1999).

A:Yes. The testimony of Annie is admissible in evidence NOTE: Where the elements of both a dying declaration
as an independently relevant statement. It is offered in and a statement as part of the res gestae are present, the
evidence only to prove the tenor thereof, not to prove statement may be admitted as a dying declaration and at
the truth of the facts asserted therein. Independently the same time as part of res gestae(People vs. Gado, G.R.
relevant statements include statements which are on the No. 129556, November, 11, 1998).
very facts in issue or those which are circumstantial
evidence thereof. The hearsay rule does not apply Requisites for the admissibility of a dying
(People v. Gaddi, G.R. No. 74065, February 27, 1989). declaration

Non-human evidence 1. The declaration is one made by a dying person;

2. The declaration was made by said dying person
It is the testimony of a witness as to statements made by under a consciousness of his impending death;
a non-human declarant (e.g. machines and computers). It 3. The declaration refers to the cause and
does not violate the rule on hearsay, hence not covered circumstances surrounding the death of the
by the Rule. Machines and animals, unlike humans, lack declarant and not of anyone else;
conscious motivation to tell falsehoods. The workings of 4. The declaration is offered in a case wherein the
the machines can be explained by human witnesses who declarant’s death is the subject of the inquiry
may then be cross-examined (Herrera, 1999). (Geraldo v. People, G.R. No. 173608, November 20,
2008);
EXCEPTIONS TO THE HEARSAY RULE 5. The declarant is competent as a witness had he
survived (Ibid.);
Exceptions to the hearsay rule (1999 Bar Question) 6. That the statement is complete in itself – “Doctrine
of Completeness” (People v. De Joya, G.R. No. 75028,
1. Dying declaration (Sec. 37); November 8, 1991); and
2. Declaration against interest (Sec. 38); 7. The declarant should have died (if he survives, his
3. Act or declaration about pedigree (Sec. 39); declaration may be admissible as part of the res
4. Entries in the course of business (Sec. 43); gestae) (Riano, 2013).
5. Testimony or deposition at a former proceeding
(Sec. 47); Time interval
6. Family reputation or tradition regarding pedigree
(Sec. 40); GR: The intervening time from the making of a dying
7. Common reputation (Sec. 41); declaration up to the time of death is immaterial in its
8. Parts of res gestae (Sec. 42); admissibility, as long as it was made under the
9. Entries in official records (Sec. 44); consciousness of impending death.
10. Commercial lists and the like (Sec. 45);
11. Learned treatises (Sec. 46); XPN: If there is retraction made by the declarant before
he died or his declaration is ambiguous. However, the
NOTE: Items 1 to 5 require death or unavailability of interval of time between the declaration and the death of
declarant. the declarant may be taken into account where the
declaration is ambiguous as to whether the declarant
It is not correct to say that the exceptions to the hearsay believed that his death was imminent when he made
rule are not hearsay. They are hearsay evidence but they such declaration (Regalado, 2008).

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 EVIDENCE
interest and against third persons (Sec. 38, Rule
Factors in determining whether the declarant is 130).(Bar 2007)
conscious of his impending death
These are ante litem motam statements made by a
1. The words or statements of the declarant on the person who is neither a party nor in privity with a party
same occasion; to the suit. Such are considered secondary evidence and
2. His conduct at the time the declaration was made; admissible only when the declarant is already dead or
and unavailable to testify as a witness and may be admitted
3. The serious nature of his wounds as would against himself or successors-in-interest and against
necessarily engender a belief on his part that he third persons.
would not survive therefrom (Regalado, 2008).
Reason for the admissibility of declaration against
NOTE: The dying declaration of the deceased is not interest
admissible as an ante-mortem declaration when the
deceased was in doubt as to whether he would die or Necessity, as such declaration, act, or omission is
not. It may, however, be admitted as part of res gestae frequently the only mode of proof available and
when it is made immediate after a startling trustworthiness, because of the first presumption that
occurrence(People of the Philippines v. Laquinon, G.R. No. men will neither falsify nor commit mistakes when such
L-45470, February 28, 1985). falsehood or mistake would be prejudicial to their own
pecuniary interest, and because of the fact that any
Q: Sam was charged with robbery and homicide. fraudulent motive for making the statement may be
Kitchie, the vcictim, suffered several stab wounds. It shown.
appears that 11 hours after the crime, while Kitchie
was being brought to the hospital in a jeep, with his Requisites of declaration against interest:
brother and a policeman as companions, Kitchie was
asked certain questions which she answered, 1. The declarant is dead or unable to testify;
pointing to Sam as her assailant. Her answers were
put down in writing, but since she was in a critical NOTE: The inability to testify must be serious.
condition, her brother and the policeman signed the
statement. Is the statement admissible as a dying 2. Declaration relates to a fact against the interest of
declaration? Explain. (1999 Bar Question) the declarant;
3. At the time he made said declaration, he was aware
A: Yes. The statement is admissible as a dying that the same was contrary to his interest; and
declaration if the victim subsequently died and her 4. Declarant had no motive to falsify and believed such
answers were made under the consciousness of an declaration to be true.
impending death. The fact that she did not sign the
statement pointing to the accused as her assailant Q: Alejandro Cuenca was charged with the crime of
because she was in a critical condition does not affect its kidnapping Hector Ocampo. One of the testimonies
admissibility as a dying declaration (People v. Viovicente, presented by the prosecution was that of Maribelle
G.R. No. 118707, February 2, 1998). Magdayao, who testified that Hector confided to her
that he and Alejandro’s wife Rubi were having an
NOTE: A dying declaration may be oral or written. If oral, affair. Undoubtedly, his wife's infidelity was ample
the witness who heard it may testify thereto without the reason for Alejandro to contemplate revenge.
necessity of reproducing the word of the decedent, if he Consequently, the trial court convicted Alejandro
is able to give the substance thereof. An unsigned dying based on the testimonies of the witnesses. Was the
declaration may be used as a memorandum by the testimony of Maribelle admissible as evidence?
witness who took it down (People v. Boller, G.R. Nos.
144222-24, April 3, 2002). A: Yes. Hector’s revelation to Maribelle regarding his
illicit relationship with Alejandro’s wife is admissible in
Assailing a dying declaration evidence, pursuant to Section 38, Rule 130 of the Revised
Rules on Evidence. With the deletion of the phrase
The declaration may be attacked in the same manner as "pecuniary or moral interest" from the present
one would do a testimony in open court. The declarant provision, it is safe to assume that "declaration against
himself may be impeached through the normal methods interest" has been expanded to include all kinds of
provided for under the rules. interest, that is, pecuniary, proprietary, moral or even
penal.Hector having been missing since his abduction,
DECLARATION AGAINST INTEREST cannot be called upon to testify. His confession to
Maribelle, definitely a declaration against his own
The declaration made by a person deceased, or unable to interest, since his affair with Rubi was a crime, is
testify, against the interest of the declarant, if the fact is admissible in evidencebecause no sane person will be
asserted in the declaration was at the time it was made presumed to tell a falsehood to his own detriment
so far contrary to declarant's own interest, that a (People v. Bernal, G.R. No. 113685, June 19, 1997).
reasonable man in his position would not have made the
declaration unless he believed it to be true, may be
received in evidence against himself or his successors in

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Declaration against interest vs. Admission against 3. The declarant must be a relative of the person
interest whose pedigree is in question, either by birth or
marriage;
Declaration against Admission against 4. The declaration must be made ante litem motam or
Interest Interest before the controversy occurred; and
Made by a person who is Made by a party to a 5. The relationship between the declarant and the
neither a party nor in litigation or by one in person whose pedigree is in question must be
privity with a party to the privity with or identified in shown by evidence other than such act or
suit is a secondary legal interest with such declaration (Tecson v. COMELEC, G.R. No. 161434,
evidence. party. March 3, 2004).
Secondary evidence is Primary evidence is
admissible only when the admissible whether or not NOTE: Such declarations are natural expressions of
declarant is already dead the declarant is available persons who must know the truth. Although hearsay, it is
or unavailable to testify as as a witness. best that the nature of the case admits and because
a witness. greater evil might arise from the rejection of such proof
Exception to the hearsay Covered by the hearsay than from its admission.
rule rule
Must have been made ante May be made at any time, FAMILY REPUTATION OR TRADITION
litem motam, i.e. before the before or during the trial. REGARDING PEDIGREE
controversy
May be admitted against Used only against the party The reputation or tradition existing in a family previous
himself or successors-in- admitting to the controversy, in respect to the pedigree of any one
interest and against third of its members, may be received in evidence if the
persons witness testifying thereon be also a member of the
family, either by consanguinity or affinity. Entries in
ACT OR DECLARATION ABOUT PEDIGREE family bibles or other family books or charts, engravings
on rings, family portraits and the like, may be received as
The act or declaration of a person deceased, or unable to evidence of pedigree (Sec. 40, Rule 130). (Bar 2000)
testify, in respect to the pedigree of another person
related to him by birth or marriage, may be received in The declarant is the witness himself and a member of the
evidence where it occurred before the controversy, and family. The witness is the one to whom the fact relates, it
the relationship between the two persons is shown by is not necessary for him to establish by independent
evidence other than such act or declaration (Sec. 39, Rule evidence his relationship to the family.
130).
Reason for admissibility
Pedigree
These are admissible by reason of necessity since
It includes relationship, family genealogy, birth, tradition is often the sole method by which proof of
marriage, death, the dates when and the places where matters of pedigree can be obtained.
the facts occurred and the names of the relatives. It also
embraces facts of family history intimately connected Requisites for the admissibility of family reputation
with pedigree (Ibid.). or tradition regarding pedigree

NOTE: The relationship between the declarant and the 1. There is controversy in respect to the pedigree of
person subject of the inquiry must be legitimate unless any member of the family;
the issue is the legitimacy itself. 2. The reputation or tradition of the pedigree of the
person concerned existed previous to the
There is no provision as to the extent of degree of controversy;
relationship. 3. The statement is about the reputation or tradition of
the family in respect to the pedigree of any member
Reason for admissibility of the family; and
4. The witness testifying to the reputation or tradition
Necessity and trustworthiness. Necessity since the facts regarding pedigree of the person concerned must be
about pedigree are usually those which occurred many a member of the family of said person either by
years before the trial and known only to a few persons. consanguinity or affinity (Sec. 40, Rule 130).
Trustworthiness since these are matters which members
of a family are presumed to be interested in ascertaining How to establish family reputation or tradition with
the truth. respect to one’s pedigree

Requisites for the admissibility of acts or 1. Through testimony in open court of a witness who
declarations about pedigree must be a member of the family either by
consanguinity or affinity;
1. The declarant is dead or unable to testify; 2. Through entries in:
2. The pedigree should be in issue; a. Family bible;
b. Family books or charts;

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c. Engravings on rings; or Requisites for admissibility of common reputation
d. Family portraits and the like.
1. The facts must be of public or general interest or
Sec. 39 (act or declaration about pedigree) v. Sec. 40 respecting marriage or moral character;
(family reputation regarding pedigree) 2. The common reputation must have been ancient, i.e.
30 years old;
Section 39 Section 40 3. The reputation must have been one formed among a
Act or declaration about Family reputation or class of persons who were in a position to have
pedigree tradition regarding some sources of information and to contribute
pedigree intelligently to the formation of the opinion; and
Act or declaration about Family reputation or 4. The common reputation must have been existing
pedigree tradition regarding previous to the controversy.
pedigree
Witness need not be a Witness is a member of the Matters that may be established by common
member of the family family reputation
Relation of the declarant The witness is the one to
and the person subject of whom the fact relates, it is 1. Matters of public and general interest more than 30
the inquiry must be not necessary for him to years old;
established by establish by independent 2. Matters respecting marriage or moral character and
independent evidence evidence his relationship related facts; and
to the family (Francisco, 3. Individual moral character.
1992).
Testimony is about what Testimony is about family NOTE: Marriage, if not proven through an act or
the declarant has said reputation or tradition declaration about pedigree may be proven through
concerning the pedigree of covering matters of common reputation (Trinidad v. CA, G.R. 118904, April 20,
the family pedigree 1998).

COMMON REPUTATION Difference between matters of public interest and

matters of general interest
Common reputation existing previous to the
controversy, respecting facts of public or general interest Matters of public interest involve those which are
more than thirty years old, or respecting marriage or common to all citizen of the state or to the entire people
moral character, may be given in evidence. Monuments while matters of general interest involve those which are
and inscriptions in public places may be received as common only to a single community or to a considerable
evidence of common reputation (Sec. 41, Rule 130). number of persons forming part of the community.

It is the definite opinion of the community in which the PART OF THE RES GESTAE
fact to be proved is known or exists. It means the general
or substantially undivided reputation, as distinguished Res Gestae
from a partial or qualified one, although it need not be
unanimous (Regalado, 2008). Statements made by a person while a startling
occurrence is taking place or immediately prior or
NOTE: As a general rule, the reputation of a person subsequent thereto with respect to the circumstances
should be that existing in the place of his residence; it thereof, may be given in evidence as part of res gestae.
may also be that existing in the place where he is best So, also, statements accompanying an equivocal act
known (Ibid.). Character is what a man is, and reputation material to the issue, and giving it a legal significance,
is what he is supposed to be in what people say he is may be received as part of the res gestae(Sec. 42, Rule
(Lim v. CA, G.R. No. 91114, September 25, 1992). 130). (Bar 2005, 2007)

Reasons for admissibility It is a Latin phrase which literally means "things done."
As an exception to the hearsay rule, it refers to those
1. Necessity arising from the inherent difficulty of exclamations and statements by either the participants,
obtaining any other evidence than that in the nature victims, or spectators to a crime immediately before,
of common reputation; and during or immediately after the commission of the crime,
2. Trustworthiness of the evidence arising from: when the circumstances are such that the statements
a. The supposition that the public is conversant were made as spontaneous reactions or utterances
with the subject to be proved because of their inspired by the excitement of the occasion, and there was
general interest therein; and no opportunity for the declarant to deliberate and
b. The fact that the falsity or error of such fabricate a false statement (Capila v. People, G.R. No.
evidence could be exposed or corrected by 146161, July 17, 2006).
other testimony since the public are interested
in the same (Francisco, 1992). Reason for admissibility

The reason for the rule is human experience. It has been

shown that under certain external circumstances of

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physical or mental shock, the state of nervous excitement May precede, or Confined to matters
which occurs in a spectator may produce a spontaneous accompany or follow the occurring after the
and sincere response to the actual sensations and principal act homicidal act
perceptions produced by the external shock.
Justification is the Justification is the
As the statements or utterances are made under the spontaneity of the trustworthiness, being
immediate and uncontrolled domination of the senses, statement given by the person who
rather than reason and reflection, such statements or was aware of his
utterances may be taken as expressing the real belief of impending death
the speaker as to the facts he just observed. The
spontaneity of the declaration is such that the Two types of res gestae
declaration itself may be regarded as the event speaking
through the declarant rather than the declarant speaking Verbal Acts Spontaneous Statements
for himself. Utterances which Statements or
accompany some act or exclamations made
Requisites for the admissibility of res gestae conduct to which it is immediately after some
desired to give legal effect; exciting occasion by a
Spontaneous Statements When such act has participant or spectator
intrinsically no definite and asserting the
1. That there is a startling event or occurrence taking legal significance, or only circumstances of that
place; an ambiguous one, its legal occasion as it is observed
2. A statement was made, while the event is taking purport or tenor may be by him.
place or immediately prior to or subsequent ascertained by considering
thereto; the words accompanying
3. The statement was made before the declarant had it, and these utterances
time to contrive or devise a falsehood; and thus enter merely as
4. The statement relates to the circumstances of the verbal part of the act.
startling event or occurrence or that the statements
must concern the occurrence in question and its The res gestae is the The res gestae is the
immediately attending circumstances (Sec. 42, Rule equivocal act. startling occurrence.
130; Talidano v. Falcom Maritime & Allied Services,
Inc., G.R. No. 172031, July 14, 2008). Verbal act must be May be prior to,
contemporaneous with or simultaneous with, or
NOTE: The reason for the admissibility of spontaneous must accompany the subsequent to the startling
statements is trustworthiness and necessity, because equivocal act to be occurrence.
statements are made instinctively, and because said admissible.
natural and spontaneous utterances are more convincing
than the testimony of the same person on the stand. Factors to determine whether statements offered in
evidence as part of the res gestae have been made
Verbal Acts spontaneously
1. The principal act to be characterized must be 1. The time that has elapsed between the occurrence
equivocal; of the act and transaction and the making of the
2. The equivocal act must be material to the issue; statement;
3. The statement must accompany the equivocal act; 2. The place where the statement was made;
and 3. The condition of the declarant when he made the
4. The statement gives a legal significance to the statement;
equivocal act (Ibid). 4. The presence or absence of intervening occurrences
between the occurrence and the statement relative
NOTE: The reason for the admissibility of verbal acts is
thereto; and
that the motive, character and object of an act are
5. The nature and circumstances of the statement itself
frequently indicated by what was said by the person
(Francisco, 1992).
engaged in the act.
Q: Sam raped Reyna. After raping Reyna, Sam fled.
Part of res gestae vs. Dying Declaration
Reyna then rushed to the police station and told
Police Officer Buloy what had happened. Sam was
Part of Res Gestae Dying Declaration charged with rape. During the trial, Reyna can no
It is the event itself which A sense of impending longer be located. If the prosecution presents Buloy
speaks death takes the place of an to testify on what Reyna had told him, would such
oath and the law regards testimony of Buloy be hearsay? Explain. (2005 Bar
the declarant as testifying Question)

May be made by the killer Can be made by the victim A: No. It is part of res gestae. It is also an independently
after or during the killing only relevant statement. Buloy testified based on his personal
or that of a third person knowledge; that is, he was testifying to the fact that

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Reyna told him that she was raped by Sam and not to the NOTE: Baptismal certificates are admissible as entries in
truth of Reyna’s statement (People v. Gaddi, G.R. No. the ordinary course of business, even absent the
74065, Feb. 27, 1989). testimony of the officiating priest or official recorder
because it is one of its transactions in the exercise of
ENTRIES IN THE COURSE OF BUSINESS ecclesiastical duties and recorded in the book of the
or THE SHOP-BOOK RULE Church during the course of its business (Heirs of Conti v.
Court of Appeals, G.R. No. 118464, December 21, 1998.)
Entries made at, or near the time of transactions to
which they refer, by a person deceased, or unable to When the declarant is alive
testify, who was in a position to know the facts therein
stated, may be received as prima facie evidence, if such GR: Business entries may not be admitted in evidence as
person made the entries in his professional capacity or in an exception to the hearsay rule when the declarant is
the performance of duty and in the ordinary or regular alive.
course of business or duty (Sec. 43, Rule 130).
XPN: They may nevertheless be availed of by said
Reason for admissibility entrant as a memorandum to refresh his memory while
testifying on the transactions reflected therein.
What a man has actually done and committed to writing
when under obligation to do the act, it being in the ENTRIES IN OFFICIAL RECORDS
course of the business he has undertaken, and he being
dead, there seems to be no danger in submitting to the Entries in official records made in the performance of his
consideration of the court. duty by a public officer of the Philippines, or by a person
in the performance of a duty specially enjoined by law,
NOTE: Reliability is furnished by the fact that regularly are prima facie evidence of the facts therein stated (Sec.
kept records typically have a high degree of accuracy. 44, Rule 130).
The law does not fix any precise moment when the
entries should be made. It is sufficient if the entry was Official record
made within a reasonable period of time so that it may
appear to have taken place while the memory of the facts The original document that is legally recognized and thus
was unimpaired. ensuring the quality of a fact when it is established. It
may be a:
Requisites for the admissibility of entries in the 1. Register;
course of business 2. Cash book; or
3. An official return or certificate (Regalado, 2008).
1. The person who made the entry must be dead or Reason for admissibility
unable to testify;
2. The entries were made at or near the time of the 1. Necessity - due to the impossibility of requiring the
transactions to which they refer; official’s attendance as a witness to testify to the
3. The entrant was in a position to know the facts innumerable transactions occurring in the course of
stated in the entries; his duty;
4. The entries were made in his professional capacity 2. Trustworthiness – there is a presumption of
or in the performance of a duty, whether legal, regularity in the performance of official duty.
contractual, moral or religious; and
5. The entries were made in the ordinary or regular Requisites for the admissibility of entries in official
course of business or duty (Patula v. People, G.R. No. records
164457, April 11, 2012).
1. Entries were made by a public officer in the
NOTE: The law does not fix any precise moment when performance of his duties or by a person in the
the entries should be made as long as the entry was performance of a duty especially enjoined by law;
made within a reasonable period of time so that it may 2. Entrant had personal knowledge of the facts stated
appear to have taken place while the memory of the facts by him or such facts were acquired by him from
was unimpaired. reports made by persons under a legal duty to
submit the same; and
Proof of regularity of the entries 3. Such entries were duly entered in a regular manner
in the official records (Ibid.).
It may be proved by the form in which they appear as
entries in the books/ledgers. There is no need to present
for testimony the clerk who manually made the entries.
The person who supervised such clerk is competent to
testify that:
1. The account was prepared under his supervision;
and
2. That the entries were regularly entered in the
ordinary course of business (Regalado, 2008).

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Entries in official record vs. Entries in the course of 2. Mortality tables compiled for life insurance;
business 3. Abstracts of title compiled by reputable title
examining institutions or individuals; or
Entries in Entries in the 4. Business directories, animal pedigree registers, and
Official Record Course of Business the like (Francisco, 1992).
The entrant, if a private It is sufficient that the
individual, must have entrant made the entries LEARNED TREATISES
acted pursuant to a pursuant to a duty be it
specific legal duty specially legal, contractual, moral or A published treatise, periodical or pamphlet on a subject
enjoined by law. religious. of history, law, science, or art is admissible as tending to
prove the truth of a matter stated therein if the court
Entrant need not be dead Entrant must be dead or takes judicial notice, or a witness expert in the subject
or unable to testify unable to testify. testifies, that the writer of the statement in the treatise,
periodical or pamphlet is recognized in his profession or
Need not be authenticated Needs authentication calling as expert in the subject (Sec. 46, Rule 130).

Exception to the best Best Evidence Rule applies Reason for admissibility
evidence rule
(irremovability of public The learned writers have no motive to misrepresent due
records) to the awareness that his work will be carefully
scrutinized by the learned members of the profession
Q: Should entries in the police blotter be given and that he shall be subject to criticisms and be
probative value? ultimately rejected as an authority on the subject matter
if his conclusions are found to be invalid.
A: No, as they are not conclusive evidence of the truth of
the contents but merely of the fact that they were Requisites for the admissibility of learned treatises
recorded (People v. Cabrera, Jr., G.R. No. 138266, April 30,
2003). 1. When the court can take judicial notice of them; or
2. When an expert witness testifies that the author of
COMMERCIAL LISTS AND THE LIKE such is recognized as expert in that profession (Sec.
46, Rule 130).
Evidence of statements of matters of interest to persons
engaged in an occupation contained in a list, register, TESTIMONY OR DEPOSITION
periodical, or other published compilation is admissible AT A FORMER TRIAL
as tending to prove the truth of any relevant matter so
stated if that compilation is published for use by persons The testimony or deposition of a witness deceased or
engaged in that occupation and is generally used and unable to testify, given in a former case or proceeding,
relied upon by them therein (Sec. 45, Rule 130). judicial or administrative, involving the same parties and
subject matter, may be given in evidence against the
Reason for admissibility adverse party who had the opportunity to cross-examine
him (Sec. 47, Rule 130).
Because of the usual inaccessibility of the persons
responsible for the compilation of matters contained in Requisites for admissibility
such lists, it would cause the court inconvenience if it
would issue summons to these numerous individuals. 1. The witness evidence is dead or unable to testify;
Persons responsible for such lists have no motive to 2. The testimony or deposition was given in a former
deceive and they further realize that unless the list, case or proceeding, judicial or administrative,
register or periodical or other published compilation are between the same parties or those representing the
prepared with care and accuracy, their work will have no same interests;
commercial or probative value. 3. The former case involved the same subject as that in
the present case, although on different causes of
Requisites for the admissibility of commercial lists action;
and the like 4. The issue testified to by the witness in the former
trial is the same issue involved in the present case;
1. Statements of matters of interest to persons and
engaged in an occupation; 5. The adverse party had an opportunity to cross-
2. Statements must be contained in a list, register, examine the witness in the former case (Manliclic v.
periodical, or other published compilation; Calunan, G.R. No. 150157, January 25, 2007).
3. Compilation is published for use by persons
engaged in that occupation; and NOTE: What may be admitted as evidence is testimony
4. Such is generally relied upon by them. or deposition. A decision in a previous case involving the
same parties and the same subject matter does not fall
Examples of commercial lists under the exception. What is considered as a testimony
in the former trial is the “transcript of the witness’
1. Trade journals reporting current prices and other testimony.”
market data;

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 EVIDENCE
NOTE: The use of the word may, signifies that the use of
Grounds which make a witness unable to testify in a opinion of expert witness is permissive and not
subsequent case mandatory on the part of the courts. It only assists the
court in the determination of the issue before it, and is
1. Death; for the court to adopt or not to adopt depending on its
2. Insanity or mental incapacity or the former witness’ appreciation of the attendant facts and the applicable
loss of memory through old age or disease; law (Tabao v. People, G.R. No. 187246, July 20, 2011).
3. Physical disability by reason of sickness or
advanced age; Expert Witness
4. The fact that the witness has been kept away by
contrivance of the opposite party; or He is one who belongs to the profession or calling to
5. The fact that after diligent search the former which the subject matter of the inquiry relates and who
witness cannot be found (Francisco, 1992). possesses special knowledge on questions on which he
proposes special knowledge to express an opinion
Proof of former testimony (Regalado, 2008). Before one may be allowed to testify as
an expert witness, his qualification must first be
1. If reduced to writing, such writing is the primary established by the party presenting him, i.e., he must be
evidence thereof and should be used; shown to possess the special skill or knowledge relevant
2. The stenographic notes or a copy thereof. to the question to which he is to express an opinion
(People vs. Fundano, G.R. No. 124737, June 26, 1998).
NOTE: The judge’s notes are not evidence of what the
witness said, and, as a rule, they can be used only to NOTE: Expert testimony is not admissible as to a matter
refresh the memory of a witness. not in issue.

OPINION RULE Degree of skill or knowledge

Opinion There is no definite standard in determining the degree

of skill or knowledge that a witness must possess in
A person's thought, belief, or inference, especially a order to testify as an expert as long as the following are
witness's view about facts in dispute, as opposed to present:
personal knowledge of the facts themselves (Black’s Law 1. Training and education;
Dictionary, 2004). 2. Particularity, first-hand familiarity with the facts of
the case;
GR: The opinion of a witness is not admissible. The 3. Presentation of authorities or standards upon which
witness must testify to facts within their knowledge and his opinion is based (People v. Abriol, G.R. No.
may not state their opinion, even on their cross- 123137, October 17, 2001).
examination.
NOTE: An expert witness may base his opinion either on
XPNs: the first-hand knowledge of the facts or on the basis of
1. Opinion of expert witness; hypothetical questions where the facts are presented to
2. Opinion of ordinary witnesses him hypothetically and on the assumption that they are
true, formulates his opinion on such hypothesis.
NOTE: Opinion testimony involving questions of law or
the ultimate fact in issue is not admissible. The probative force of the testimony of an expert does
not lie in a mere statement of his theory or opinion, but
Hearsay evidence vs. Opinion evidence (Bar 2002, rather in the aid that he can render to the courts in
2004) showing the facts which serve as a basis for his criterion
and the reasons upon which the logic of his conclusion is
Hearsay Evidence Opinion Evidence founded (Dizon v. Tuazon, G.R. No. 172167, July 9, 2008).
Consists of testimony that Expert evidence based on
is not based on personal the personal knowledge, Test in determining the need to resort to expert
knowledge of the person skill, experience or evidence
testifying training of the person
testifying and evidence of Whether the opinion called for will aid the court in
an ordinary witness on resolving an issue.
limited matters.
Q: In a case where the issue involves forgery, two
OPINION OF EXPERT WITNESS expert witness were presented by the plaintiff, the
NBI official and a handwriting expert from the PNP.
The opinion of a witness on a matter requiring special The NBI official testified that the signatures in the
knowledge, skill, experience or training which he shown deed of sale and the other sample signatures are the
to possess may be received in evidence (Sec. 49, Rule same. However, the PNP handwriting expert
130). declared that the person who signed are not the
same person. The lower court gave credit and based
the ruling on the testimony of the PNP handwriting

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expert on the fact that the said witness has better CHARACTER EVIDENCE
credentials than the NBI witness. Is the ruling valid, IN CRIMINAL CASES
because of the fact that the court based the ruling on
the credentials? As to the As to the As to the
Accused Prosecution Offended Party
A: While credentials of an expert witness play a factor in He may prove They may not His good or bad
the evidentiary and persuasive weight of his testimony, his good moral prove the bad moral character
the same cannot be the sole factor in determining its character which moral character may be proved
value. The judge must conduct his own independent is pertinent to of the accused as long as it
examination of the signatures under scrutiny (Tamani, et the moral trait which is tends to
al. v. Roman Salvador and Filomena Bravo, G.R. No. involved in the pertinent to the establish in any
171497, April 4, 2011). offense charged moral trait reasonable
involved in the degree the
OPINION OF ORDINARY WITNESS offense charged, probability or
unless in improbability of
That which is given by a witness who is of ordinary rebuttal when the offense
capacity and who has by opportunity acquired a the accused charged (Bar
particular knowledge which is outside the limits of opens the issue 2002, 2010)
common observation and which may be of value in by introducing
elucidating a matter under consideration. evidence of his
good moral
The opinion of a witness for which proper basis is given, character
may be received in evidence regarding:
1. The identity of a person about whom he has NOTE: In criminal cases, character evidence is
adequate knowledge; inadmissible under the following situations:
2. A handwriting with which he has sufficient 1. In rebuttal, proof of the bad character of the victim
familiarity; is not admissible if the crime was committed
3. The mental sanity of a person with whom he is through treachery and premeditation; and
sufficiently acquainted; and 2. In rape cases, the evidence of complainant’s past
4. The witness’ impressions of the emotion, sexual conduct, or reputation or opinion thereof
behavior, condition or appearance of a person shall not be admitted unless and only to the extent
(Sec. 50, Rule 130). (Bar 2005) that the court finds that such evidence is material
and relevant to the case (Sec. 6, R.A. 8505).
CHARACTER EVIDENCE
CHARACTER EVIDENCE
Character IN CIVIL CASES

The aggregate of the moral qualities which belong to and The moral character of either party thereto cannot be
distinguish an individual person; the general result of proved unless it is pertinent to the issue of character
one’s distinguishing attributes (Black’s Law Dictionary, involved in the case (Sec. 51, Rule 130).
2004).
Proof of bad character
Admissibility of Character Evidence
1. Cross-examination;
GR: Character evidence is NOT admissible in evidence. 2. Independent evidence of bad character.

XPNs: NOTE: Personal opinion as to the moral character of the

1. Subject to certain exceptions in criminal cases; accused and the specific conduct of the part exhibiting
2. In civil cases; character is excluded as evidence. However, reputation
3. In case the character of a witness has been in the community is admissible.
previously impeached (Sec. 14, Rule 132).
Q: Don was prosecuted for homicide for allegedly
NOTE: The reason for this is that the evidence of a beating up Vilma to death with an iron pipe. May the
person’s character does not prove that such person acted prosecution introduce evidence that Vilma had a
in conformity with such character or trait in a particular good reputation for peacefulness and non-violence?
occasion. Why? (2002 Bar Question)

A: The prosecution may introduce evidence of the good

or even bad moral character of the victim if it tends to
establish in any reasonable degree the probability or
improbability of the offense charged. In this case, the
evidence is not relevant.

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 EVIDENCE
RULE ON EXAMINATION OF A CHILD WITNESS NOTE: A person who is a witness in any proceeding
(A.M. No. 004-07-SC) involving the child cannot be appointed as a guardian ad
litem (Ibid.).
APPLICABILITY OF THE RULE
Best interest of the child
It shall apply in all criminal and non-criminal
proceedings involving child witnesses. This Rule shall It is determined by the totality of the circumstances and
govern the examination of child witnesses who are conditions as are most congenial to the survival,
victims of crime, accused of a crime, and witnesses of a protection and feelings of security of the child and most
crime (Sec. 1). encouraging to his physical, psychological and emotional
development. It also means the least detrimental
The provisions of the Rules of Court on deposition, available alternative for safeguarding the growth and
conditional examination of witnesses, and evidence shall development of the child (Sec. 4(g)).
be applied in a suppletory character (Sec. 32).
COMPETENCY OF A CHILD WITNESS
MEANING OF “CHILD WITNESS”
Presumption of Competency of a child witness
A child witness is any person who at the time of giving
testimony is below the age of 18 years. In child abuse Every child is presumed qualified to be a witness.
cases, a child includes one over 18 years but is found by However, the court shall conduct a competency
the court as unable to fully take care of himself or protect examination of a child, motu proprio or on motion of a
himself from abuse, neglect, cruelty, exploitation, or party, when it finds that substantial doubt exists
discrimination because of a physical or mental disability regarding the ability of the child to perceive, remember,
or condition (Sec. 4(a)). communicate, distinguish truth from falsehood, or
appreciate the duty to tell the truth in court (Sec. 6).
Child witness vs. Ordinary witness
Examination of a child as to his competence shall be
Child Witness Ordinary Witness conducted only by the judge. Counsels of the parties can
Only the judge is allowed Opposing counsels are submit questions to the judge that he may, in his
to ask questions to a child allowed to ask questions discretion, ask the child.
witness during during preliminary
preliminary examination examination Requirements of a child’s competency as a witness

Testimony in a narrative Testimony in a narrative 1. Capacity of observation;

form is allowed form is not allowed 2. Capacity of recollection; and
3. Capacity of communication (People v. Nang, G.R. No.
Leading questions are Leading questions are 107799, April 15, 1998).
allowed generally not allowed
NOTE: A mere allegation that a witness is of tender age
The child witness is An ordinary witness is is not sufficient to disqualify him from sitting on the
assisted by a support not assisted by a support witness stand (People vs. Santos, G.R. No. 77912, March 6,
person person 1990).

In-depth investigative interview or disclosure Competency Examination

interview
A party seeking competency examination must present
It is an inquiry or proceeding conducted by duly trained proof of necessity of competency examination. The age of
members of a multidisciplinary team or representatives the child by itself is not a sufficient basis for a
of law enforcement or child protective services for the competency examination (Sec. 6(a)).
purpose of determining whether child abuse has been
committed (Sec. 4(i)). NOTE: The burden of proof lies on the party challenging
the competency of the child (Sec. 6(b)).
Appointment of guardian ad litem
Persons allowed at a competency examination
The court may appoint a guardian ad litem for a child
who is a victim of, accused of, or a witness to a crime to Only the following are allowed at a competency
promote the best interests of the child. In making the examination:
appointment, the court shall consider the background of 1. The judge and necessary court personnel;
the guardian ad litem and his familiarity with the judicial 2. The counsel for the parties;
process, social service programs, and child development, 3. The guardian ad litem, if any;
giving preference to the parents of the child, if qualified 4. One or more support persons for the child; and
(Sec. 5(a)). 5. The defendant, unless the court determines that
competence can be fully evaluated in his absence
(Sec. 6(c)).

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NOTE: Such competency examination shall be conducted Corroboration of testimony of child witness NOT
only by the judge but the counsel for the parties can required
submit questions to the judge that he may, in his
discretion, ask the child (Sec. 6(d)). Corroboration shall not be required for the testimony of
a child. His testimony, if credible by itself, shall be
Questions to be asked to the child during sufficient to support a finding of fact, conclusion, or
competency examination judgment subject to the standard of proof required in
criminal and non-criminal cases (Sec. 22).
The questions to be asked are:
1. Appropriate to the age and developmental level of Q: Budoy was charged with rape of his 10 year old
the child; stepdaughter, Angie, to which he pleaded not guilty.
2. Not related to the issues at trial; and For the prosecution, it presented as witnesses the
3. Shall focus on the ability of the child to remember, victim and a Medico Legal Certificate issued by Dr.
communicate, distinguish between truth and Luna, the results of which showed that the victim
falsehood, and appreciate the duty to testify suffered hymenal laceration. For the defense, he
truthfully (Sec. 6(e)). vehemently denied the charges and presented an
alibi. RTC, affirmed with modification by the CA
Developmental level convicted the accused. Should the testimony of the
child be given full weight and credit?
It refers to the specific growth phase in which most
individuals are expected to behave and function in A: Testimonies of child victims are given full weight and
relation to the advancement of their physical, socio- credit, for when a woman or a girl-child says that she has
emotional, cognitive, and moral abilities (Sec. 4(h)). been raped; she says in effect all that is necessary to
show that rape was indeed committed. Youth and
Duty of the court regarding the competency of the immaturity are generally badges of truth and sincerity
child (People v. Sobusa, G.R. No. 181083, January 21, 2010).

It has the duty of continuously assessing the competence Exclusion of public from the courtroom
of the child throughout his testimony (Sec. 6(f)).
When a child testifies, the court may order the exclusion
Factors to be considered by the court in determining from the courtroom of all persons, including members of
the competency of a child witness the press, who do not have a direct interest in the case.
Such an order may be made to protect the right to
The court must consider his capacity: privacy of the child or if the court determines on the
1. At the time the fact to be testified to occurred such record that requiring the child to testify in open court
that he could receive correct impressions thereof; would cause psychological harm to him, hinder the
2. To comprehend the obligation of an oath; and ascertainment of truth, or result in his inability to
3. To relate those facts truly at the time he is offered as effectively communicate due to embarrassment, fear, or
a witness. The court should take into account his timidity.
capacity for observation, recollection and
communication (Regalado, 2008). LIVE-LINK TV TESTIMONY OF
A CHILD WITNESS
EXAMINATION OF A CHILD WITNESS
Q: When may the court order that the testimony of
How conducted the child be taken by live-link television? Explain.
(2006 Bar Question)
It shall be done in open court and unless the witness is
incapacitated to speak or the question calls for different A: The court may order that the testimony of the child be
mode of answer, the answers of the witness shall be taken by live-link television if there is a substantial
given orally (Sec. 8). likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel or
Facilitator the prosecutor as the case may be. The trauma must be
of a kind which would impair the completeness or
He is a person appointed by the court to pose questions truthfulness of the testimony of the child (Sec. 25(f)).
to a child (Sec. 4(c)).
VIDEOTAPED DEPOSITION OF A CHILD WITNESS
Support person
If the court finds that the child will not be able to testify
He is a person chosen by the child to accompany him to in open court at trial, it shall issue an order that the
testify at or attend a judicial proceeding or deposition to deposition of the child be taken and preserved by
provide emotional support for him (Sec. 4(f)). videotape (Sec. 27(b)).

NOTE: The rights of the accused during trial, especially

the right to counsel and to confront and cross-examine
the child, shall not be violated during the deposition (Sec.

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 EVIDENCE
27(d)). After the original videotaping but before or provided by the law, which provide sufficient indicia
during trial, any party may file any motion for additional of reliability (Sec. 28(b)).
videotaping on the ground of newly discovered evidence.
The court may order an additional videotaped deposition SEXUAL ABUSE SHIELD RULE
to receive the newly discovered evidence. (Sec. 27(j)).
GR: It states that the following evidence is not admissible
Persons allowed to preside and be present in the in any criminal proceeding involving alleged child sexual
video-taped deposition abuse:
1. Evidence offered to prove that the alleged victim
The judge shall preside at the videotaped deposition of a engaged in other sexual behavior; and
child. Objections to deposition testimony or evidence, or 2. Evidence offered to prove the sexual predisposition
parts thereof, and the grounds for the objection shall be of the alleged victim (Sec. 30(a)).
stated and shall be ruled upon at the time of the taking of
the deposition. The other persons who may be permitted XPN: Evidence of specific instances of sexual behavior by
to be present at the proceeding are: the alleged victim to prove that a person other than the
1. The prosecutor; accused was the source of semen, injury, or other
2. The defense counsel; physical evidence shall be admissible (Sec. 30(b)).
3. The guardian ad litem;
4. The accused, subject to sub-section (e); NOTE: Testimonies of child-victims are given full weight
and credit. When a child or woman says that she was
NOTE: Sub-section (e) provides that if the order of raped, she says in effect all that is necessary to show that
the court is based on the evidence that the child is the rape was indeed committed (People of the Philippines
unable to testify, the physical presence of the vs. Pulanco, G.R. No. 141186, November 27, 2003).
accused, the court may direct the latter to be
excluded from the room in which the deposition is PROTECTIVE ORDERS
conducted.
Other measures provided under the rule for the
5. Other persons whose presence is determined by the protection of the privacy and safety of a child witness
court to be necessary to the welfare and well-being
of the child; 1. Confidentiality of records – Any record regarding a
6. One or both of his support persons, the facilitator child shall be confidential and kept under seal. The
and interpreter, if any; records may be released only to the following upon
7. The court stenographer; and written request and order of the court:
8. Persons necessary to operate the videotape a. Members of the court staff for administrative
equipment (Sec. 27(c)). use;
b. The prosecuting attorney;
HEARSAY EXCEPTION IN CHILD ABUSE CASES c. Defense counsel;
d. The guardian ad litem;
A statement made by a child describing any act or e. Agents of investigating law enforcement
attempted act of child abuse, not otherwise admissible agencies; and
under the hearsay rule, may be admitted in evidence in f. Other persons as determined by the court (Sec.
any criminal or non-criminal proceeding subject to the 31(a)).
following rules:
1. Before such hearsay statement maybe admitted, its 2. Protective order – Any videotape or audiotape of a
proponent shall make known to the adverse party child that is part of the court record shall be under a
the intention to offer such statement and its protective order that provides as follows:
particulars to provide him a fair opportunity to a. Tapes may be viewed only by parties, their
object; counsel, their expert witness, and the guardian
a. If the child is available, the court shall, upon ad litem;
motion of the adverse party, require the child b. No tape, or any portion thereof, shall be
to be present at the presentation of the hearsay divulged by any person mentioned in sub-
statement for cross-examination by the adverse section (a) to any other person, except as
party. necessary for the trial;
b. When the child is unavailable, the fact of such c. No person shall be granted access to the tape,
circumstance must be proved by the proponent its transcription or any part thereof unless he
(Sec. 28(a)). signs a written affirmation that he has received
and read a copy of the protective order; that he
NOTE: When the child witness is unavailable, his submits to the jurisdiction of the court with
hearsay testimony shall be admitted only if respect to the protective order; and that in case
corroborated by other admissible evidence (Sec. of violation thereof, he will be subject to the
28(d)). contempt power of the court;
d. Each of the tape cassettes and transcripts
2. In ruling on the admissibility of such hearsay thereof made available to the parties, their
statement, the court shall consider the time, content counsel, and respective agents shall bear the
and circumstances thereof, based on various factors following cautionary notice:

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him to an institution and subsequently releases
"This object or document and the contents him, all the records of his case shall also be
thereof are subject to a protective order issued considered as privileged and may not be
by the court in (case title), (case number). They disclosed except:
shall not be examined, inspected, read, viewed, or i. To determine if a defendant may have
copied by any person, or disclosed to any person, his sentence suspended under Art. 192
except as provided in the protective order. No of P.D. 603 or if he may be granted
additional copies of the tape or any of its portion probation under the provisions of P.D.
shall be made, given, sold, or shown to any 968; or
person without prior court order. Any person ii. To enforce his civil liability, if said
violating such protective order is subject to the liability has been imposed in the
contempt power of the court and other penalties criminal action.
prescribed by law."
8. The youthful offender concerned shall not be held
e. No tape shall be given, loaned, sold, or shown to under any provision of law to be guilty of perjury or
any person except as ordered by the court; of concealment or misrepresentation by reason of
f. Within 30 days from receipt, all copies of the his failure to acknowledge the case or recite any fact
tape and any transcripts thereof shall be related thereto in response to any inquiry made to
returned to the clerk of court for safekeeping him for any purpose (Sec. 31(g));
unless the period is extended by the court on
motion of a party; OFFER AND OBJECTION
g. This protective order shall remain in full force
and effect until further order of the court (Sec. GR: The court shall consider only the evidence which has
31(b)). been formally offered. The purpose for which the
evidence is offered must be specified (Sec. 34, Rule 132).
3. Additional protective orders – The court may, motu (Bar 2007)
proprio or on motion of any party, the child, his
parents, legal guardian, or the guardian ad litem, XPNs:
issue additional orders to protect the privacy of the 1. Marked exhibits not formally offered may be
child (Sec. 31(c)); admitted provided it complies with the following
4. Publication of identity contemptuous - Whoever requisites:
publishes or causes to be published in any format a. Must be duly identified by testimony duly
the name, address, telephone number, school, or recorded; and
other identifying information of a child who is or is b. Must have been incorporated in the records of
alleged to be a victim or accused of a crime or a the case (Ramos v. Dizon, G.R. No. 137247,
witness thereof, or an immediate family of the child August 6, 2006);
shall be liable to the contempt power of the court
(Sec. 31(c)); 2. Under the Rule on Summary Procedure, where no
5. Physical safety of child; exclusion of evidence – A full blown trial is held in the interest of speedy
child has a right at any court proceeding not to administration of justice;
testify regarding personal identifying information, 3. In summary judgments under Rule 35 where the
including his name, address, telephone number, judge based his decisions on the pleadings,
school, and other information that could endanger depositions, admissions, affidavits and documents
his physical safety or his family; filed with the court;
4. Documents whose contents are taken judicial notice
NOTE: The court may, however, require the child to of by the court;
testify regarding personal identifying information in 5. Documents whose contents are judicially admitted;
the interest of justice (Sec. 31(e)). 6. Object evidence which could not be formally offered
because they have disappeared or have become
6. Destruction of videotapes and audiotapes – lost after they have been marked, identified and
Videotapes and audiotapes produced under the testified on and described in the record and became
provisions of this Rule or otherwise made part of the subject of cross-examination of the witness who
the court record shall be destroyed after 5 years testified on them during the trial (Tabuena v. CA, G.R.
have elapsed from the date of entry of judgment No. 85423, May 6, 1991; People v. Napat-a, G.R. No.
(Sec. 31(f)); 84951, November 14, 1989);or
7. Records of youthful offender: confidential 7. Documents and affidavits used in deciding quasi-
a. Where he has been charged before any judicial or administrative cases (Bantolino v. Coca-
prosecutor or before any municipal judge and Cola Bottlers Inc., G.R. No. 153660, June 10, 2003).
the charges have been ordered dropped, all the
records of the case shall be considered as
privileged and may not be disclosed directly or
indirectly to anyone for any purpose
whatsoever;
b. Where he has been charged and the court
acquits him, or dismisses the case or commits

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 EVIDENCE
OFFER OF EVIDENCE A: Yes. The court shall consider no evidence which has
not been formally offered. The trial court rendered
Purposes of offer of evidence judgment considering only the evidence offered by Fara.
The offer is necessary because it is the duty of the judge
1. To notify the party of possible objection, and for the to rest his findings of fact and his judgment only and
offeror to make necessary correction at the trial strictly upon the evidence offered by the parties at the
level to meet the objection; trial (People v. Pecardal, G.R. No. 71381, November 24,
2. To allow the trial judge to rule properly; 1986).
3. To lay basis for appeal so that the appellate court
can decide intelligently (Regalado, 2008). Q: Aiza and Matet were charged with murder. Upon
application of the prosecution, Matet was discharged
NOTE: A formal offer is necessary, since judges are from the Information to be utilized as a State
required to base their findings of fact and their judgment witness. The prosecutor presented Matet as witness
solely and strictly upon the evidence offered by the but forgot to state the purpose of his testimony much
parties at the trial (Aludos v. Suerte, G.R. No. 165285, June less offer it in evidence. Matet testified that she and
18, 2012). Aiza conspired to kill the victim but it was Aiza who
actually shot the victim. The testimony of Matet was
To allow parties to attach any documents to their the only material evidence establishing the guilt of
pleadings and then expect the court to consider it as Aiza. Matet was thoroughly cross-examined by the
evidence, even without formal offer and admission, may defense counsel. After the prosecution rested its
draw unwarranted consequences. Opposing parties will case, the defense filed a motion for demurrer to
be deprived of their chance to examine the document evidence based on the following grounds:
and to object to its admissibility. On the other hand, the 1. The testimony of Matet should be excluded
appellate court will have difficulty reviewing the because its purpose was not initially stated and
documents not previously scrutinized by the court below it was not formally offered in evidence; and
(Candido v. Court of Appeals, G.R. No. 107493, February 1, 2. Matet's testimony is not admissible against Aiza
1996). pursuant to the rule on "res inter alios acta".
(2003 Bar Question)
Reasons for stating purposes of offer of evidence
Rule on the motion for demurrer to evidence on the
1. For the court to determine whether that piece of above grounds.
evidence should be admitted or not;
2. Evidence submitted for one purpose may not be A:
considered for any other purpose (People v. Diano, 1. The demurrer to evidence should be denied because
[CA], 66 O.G. 6405); and the defense counsel did not object to her testimony
3. For the adverse party to interpose the proper despite the fact that the prosecutor forgot to state
objection. its purpose and offer it in evidence. Moreover, the
defense counsel thoroughly cross-examined Matet
NOTE: It is basic in the law of evidence that the court and thus waived the objection.
shall consider evidence solely for the purpose for which
it was offered (Ragudo vs. Fabella Estate Tenants Assoc. 2. The res inter alios acta rule does not apply because
Inc., G.R. No. 146823, August 9, 2005). Matet testified in open court and was subjected to
cross-examination.
Identification of a Documentary Evidence vs. Formal
Offer as an Exhibit

Identification of a Formal Offer as an

Documentary Evidence Exhibit
Done in the course of the Done only when the party
trial and accompanied by rests its case (Dizon v.
the marking of the Court of Tax Appeals, G.R.
evidence as an exhibit No. 140944, April 30,
2008).

Q: Gizel filed a complaint for recovery of possession

and damages against Fara. In the course of the trial,
Gizel marked his evidence but his counsel failed to
file a formal offer of evidence. Fara then presented in
evidence tax declarations in the name of his father to
establish that his father is a co-owner of the
property. The court ruled in favor of Fara, saying
that Gizel failed to prove sole ownership of the
property in the face of Fara’s evidence. Was the court
correct? Explain briefly. (2007 Bar Question)

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Stages in the presentation of documentary evidence
NOTE: The offer shall be done orally unless allowed by
the court to be in writing (Sec. 35, Rule 132).

OBJECTION

Ways of impeaching the evidence of the proponent

1. By objection and without objection, the objection is

waived and the evidence is admitted (Sec. 36, Rule
132); or
2. By motion to strike (Sec. 39, Rule 132).

Purposes of objections

1. To keep out inadmissible evidence that would cause

harm to a client’s cause;
2. To protect the record, i.e. to present the issue of
inadmissibility of the offered evidence in a way that
if the trial court rules erroneously, the error can be
relied upon as a ground for a future appeal;
3. To protect a witness from being embarrassed on the
stand or from being harassed by the adverse
counsel;
4. To expose the adversary’s unfair tactics like his
consistently asking obviously leading questions;
5. To give the trial court an opportunity to correct its
own errors and at the same time warn the court that
a ruling adverse to the objector may supply a reason
to invoke a higher court’s appellate jurisdiction; and
6. To avoid a waiver of the inadmissibility of an
otherwise inadmissible evidence (Riano, 2013).

Time when objection should be made

Objection to evidence offered orally must be made

immediately after the offer is made. 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.
An offer of evidence in writing shall be objected to within
3 days after notice of the offer unless a different period is
WHEN TO MAKE AN OFFER allowed by the court. In any case, the grounds for
objection must be specified (Sec. 36, Rule 132).
Testimonial Evidence Documentary and Object
Evidence Testimonial Evidence Documentary and Object
Offer must be made at the Must be made after the Evidence
time the witness is called presentation of party’s 1. When the offer was When the document is
to testify.(Bar 2009) testimonial evidence, and made; offered in evidence.
before resting his case 2. When an objectionable
(Sec. 35, Rule 132). question is asked of the
Every time a new witness The evidence is only witness.
is called to testify, there offered once, after all the
must be an offer of testimonial evidence are NOTE: As a rule, failure to specify the grounds for the
evidence. offered and prior to the objection is in effect a waiver of the objection, except
resting of the case for a where the evidence could not have been legally admitted
party. for any purpose whatsoever (People v. Singh, 45 Phil.
676).
NOTE: The presentation of
a documentary or object The objection must be specific enough to adequately
evidence for marking and inform the court the rule of evidence or of substantive
identification during the law that authorizes the exclusion of evidence (Riano,
course of trial is not the 2013).
offer contemplated in the Contemporaneous Objection Rule
rules (Riano, 2013).

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 EVIDENCE
It requires that a specific and timely objection be made is again asked during the introduction of actual
to the admission of evidence. Objections to the admission evidence;
of evidence must be made seasonably, at the time it is 4. Objection to evidence was sustained but reoffered at
introduced or offered, otherwise they are deemed a later stage of the trial;
waived, and will not be entertained for the first time on 5. Evidence is admitted on condition that its
appeal (People v. Bañares, G.R. No. 68298, November 25, competency or relevancy be shown by further
1986). evidence and the condition is not fulfilled, the
objection formerly interposed must be repeated or a
Kinds of objections motion to strike out the evidence must be made;
and
1. Irrelevant – The evidence being presented is not 6. Where the court reserves the ruling on objection,
relevant to the issue (e.g. when the prosecution the objecting party must request a ruling or repeat
offers as evidence the alleged offer of an insurance the objection.
company to pay for the damages suffered by the
victim in a homicide case); RULING
2. Incompetent – The evidence is excluded by law or
rules (Sec. 3, Rule 138)(e.g. evidence obtained in It must be given immediately after the objection is made,
violation of the Constitutional prohibition against unless the court desires to take a reasonable time to
unreasonable searches and seizures); inform itself on the question presented; but the ruling
3. Specific objections – e.g. parol evidence and best shall always be made during the trial and at such time as
evidence rule; will give the party against whom it is made an
4. General objections – e.g. continuing objections (Sec. opportunity to meet the situation presented by the
37). ruling. (Sec. 38, Rule 132).
a. objection to a question propounded in the
course of the oral examination of the witness; However, if the objection is based on two or more
and grounds, a ruling sustaining the objection on one or
b. objection to an offer of evidence in writing some of the must specify the ground or grounds relied
upon. (Ibid).
5. Formal – One directed against the alleged defect in
the formulation of the question (e.g. ambiguous NOTE: The rulings of the trial court during the course of
questions, leading and misleading questions, the trial are interlocutory in nature and may not be the
repetitious questions, multiple questions, subject of separate appeals or review on certiorari but
argumentative questions) (Riano, 2013); and are assigned as errors and reviewed on appeal properly
6. Substantive – One made and directed against the taken from the decision rendered by the trial court
very nature of evidence (eg. parol, not the best (Gatdula v. People, G.R. No. 140688, January 26, 2001).
evidence hearsay, privileged communication, not
authenticated, opinion, res inter alios acta) (Ibid). STRIKING OUT OF AN ANSWER

NOTE: Objections to admissibility of evidence cannot be Modes of excluding inadmissible evidence

raised for the first time on appeal. When a party desires
the court to reject the evidence offered he must so state 1. Objection – when the evidence is offered;
in the form of objection. Without objection he cannot
raise the question for the first time on appeal (People v. NOTE: Objections may be waived because the right
Salak, G.R. No. 181249, March 14, 2011). to object is merely a privilege which the party may
waive (People v. Martin, G.R. No. 172069, January 30,
REPETITION OF AN OBJECTION 2008). However, such waiver only extends to the
admissibility of the evidence. It does not involve an
Rules on continuing objections admission that the evidence possesses the weight
attributed to it by the offering party (Riano, 2013).
GR: When it becomes reasonably apparent in the course
of the examination that the questions asked are of the 2. Motion to strike out or expunge:
same class as those to which objection has been made a. When the witness answers prematurely before
(whether sustained or overruled), it shall not be there is reasonable opportunity for the adverse
necessary to repeat the objection, it being sufficient for party to object, and such objection is found to
the adverse party to record his continuing objection to be meritorious;
such class of questions (Sec. 37, Rule 132). b. When the answers are incompetent, irrelevant,
or improper (Sec. 39, Rule 132);
XPNs: c. When the witness becomes unavailable for
1. Where the question has not been answered, it is cross-examination through no fault of the
necessary to repeat the objection when the evidence cross-examining party;
is again offered or the question is again asked; d. When the answer is unresponsive;
2. Incompetency is shown later; e. When the testimony was allowed conditionally
3. Where objection refers to preliminary question, and the condition for its admissibility was not
objection must be repeated when the same question fulfilled (Riano, 2013);

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 REMEDIAL LAW
f. When a witness has volunteered statements in (Sec. 40, Rule 132).(BAR 1991, 1996)
such a way that the party has not been able to
object thereto; NOTE: The party should ask that evidence ruled out
g. When a witness testifies without a question at the trial be attached to the record of case in order
being addressed to him; that same may be considered on appeal (Bañez vs.
h. When a witness testifies beyond the ruling of CA, G.R. No. L-30351, September 11, 1974).
the court prescribing the limits within which he
may answer (Herrera, 1999); or 2. As to oral evidence: It may state for the record the
i. Uncompleted testimonies where there is no name and other personal circumstances of the
opportunity for the other party to cross- witness and the substance of the proposed
examination (Ibid.). testimony (Sec. 40, Rule 132).

NOTE: A direct testimony given and allowed without a How offer of evidence is made
prior formal offer may not be expunged from the record.
When such testimony is allowed without any objection 1. Before the court has ruled on the objection, in which
from the adverse party, the latter is estopped from case its function is to persuade the court to overrule
questioning the non-compliance with the requirement. the objection or deny the privilege invoked;
2. After the court has sustained the objection, in which
TENDER OF EXCLUDED EVIDENCE case its function is to preserve for the appeal the
evidence excluded by the privilege invoked; or
When an attorney is not allowed by the court to present 3. Where the offer of proof includes the introduction of
testimony which he thinks is competent, material and documents, or any of the physical evidence, the
necessary to prove his case, he must make an offer of same should be marked for identification so that
proof. This is the method properly preserving the record they may become part of the record (Herrera, 1999).
to the end that the question may be saved for purposes
of review (Caraig, 2004). When offer of proof is NOT required

NOTE: This rule is in preparation in the filing of an 1. When the question to which an objection has been
appeal. Moreover, the rule is that the offeror must sustained clearly reveals on its face the substance,
preserve such excluded evidence on his record and purpose and relevancy of the excluded evidence;
stating the purpose of such preservation, i.e. knowing 2. When the substance, purpose and relevancy of the
that it is relevant and must be admitted. excluded evidence were made known to the court
either in the court proceedings and such parts
Purposes of tender of excluded evidence appear on record;
3. Where evidence is inadmissible when offered and
1. To allow the court to know the nature of the excluded, but thereafter becomes admissible, it
testimony or the documentary evidence and must be re-offered, unless the court indicates that a
convince the trial judge to permit the evidence or second offer would be useless (Herrera, 1999).
testimony; and
2. To create and preserve a record for appeal, should English Exchequer Rule v. Harmless Error Rule
the judge be not persuaded to reverse his earlier
ruling (Riano, 2013). English Exchequer Rule Harmless Error Rule
It provides that a trial The apellate court will
Offer of Proof vs. Offer of Evidence court's error as to the disregard an error
admission of evidence was committed by the trial
Offer of Proof / Tender Offer of Evidence presumed to have caused court in the admission of
of Excluded Evidence prejudice and therefore, evidence unless in its
Only resorted to if Refers to testimonial, almost automatically opinion, some substantial
admission is refused by documentary or object required new trial. wrong or miscarriage of
the court for purposes of evidence that are justice has been
review on appeal presented or offered in occasioned.
court by a party so that the
court can consider his NOTE: We follow the harmless error rule, for in dealing
evidence when it comes to with evidence improperly admitted in the trial, courts
the preparation of the examine its damaging quality and its impact to the
decision substantive rights of the litigant. If the impact is slight
and insignificant, appellate courts disregard the error as
How tender of excluded evidence is made it will not overcome the weight of the properly admitted
evidence against the prejudiced part (People v.
1. As to documentary or object evidence: It may have Teehankee Jr., G.R. Nos. 111206-08, October 6, 1995).
the same attached to or made part of the record

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