BAR NOTES IN EVIDENCE

LOPE E. FEBLE
Former Dean, MLQU School of Law

KINDS OF EVIDENCE
 1. Direct – proves a fact by itself w/o inference or presumption
 2. Circumstantial- that which indirectly proves a fact thru inference
drawn from the evidence established (P v. Matito [2004])
 3. Cumulative – evidence of the same kind which tend to prove the
same fact.
 4. Corroborative – additional evidence to prove the same fact
 5. Prima Facie – evidence which, if uncontradicted, is sufficient to
maintain a proposition.
 6. Conclusive – evidence which the law does not allow to be
contradicted
 7. Positive – affirmation of a fact did occur or exist
 8. Negative – denial of existence of a fact
 9. Primary – Best evidence Rule
 10. Secondary – Substitutionary evidence (S5, R130)

NOTE: THE RUILES OF COURT ONLY CLASSIFY EVIDENCE INTO 3: REAL OR

OBLECT, DOCUMENTARY and TESTIMONIAL.

General Principles
Rule 128
 Rule 128 of the Rules of court defines evidence as the means,
sanctioned by the rules of court, of ascertaining in a judicial
proceeding the truth respecting a matter of fact (Sec. 1). It therefore
refers to the procedures which a party must observe in every action
and proceeding to prove his cause of action, which procedures are
uniform in all courts in all trials and hearings, except where there are
laws or rules providing for different procedures to be observe [sec. 2,
r 128] (examples: rules of summary procedure, rules on small
claims, actions and proceedings in sharia’ courts, proceedings in
writs of amparo, writs of habeas data, election laws, cadastral and
land registration, naturalization and insolvency proceedings [the last
4 are specifically mentioned in Sec. 4, Rule 1, ROC) The rules of
evidence must likewise be liberally construed (sec. 6, Rule 1).

 Simply stated, anything that exist in this world can be used as

evidence provided that it complies with the rules of admissibility.
Sec. 3 thereof provides the requisites for admissibility of evidence,
which are: relevancy and competency. Evidence can be said to be
relevant if it has relation to the fact in issue as to induce a belief of
its existence or non-existence. This is the reason why sec. 4 of Rule
128 generally prohibits introduction of evidence which are merely
collateral to the fact in issue. The exception to this prohibition is
when such evidence tends in any reasonable degree to establish the
probability or improbability of the fact in issue (id.). Necessarily,
evidence must have rational probative value to the fact in issue and
must not be prohibited by law or the rules. There is no vested rights
in the rules of evidence unless the changes in the rules will
constitute an ex post facto laws (S.22, Art. III, Const).

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Collateral Matters (S4, R128)
 What is a collateral matter which is generally disallowed by the
rules? It simply refers to matters which has no direct connection
between the evidence and the fact in issue. The most common
examples of these are motive, character or reputation of a person.
Nevertheless, while these are considered collateral matters it can be
admitted if it will corroborate or supplement facts established by
other evidence, or to some extent, (as provided by sec. 4, R128) will
induce a belief as the probability or improbability of a fact in issue. It
therefore depends on the value that can be drawn if such matters
are presented for determination by the court.

Collateral Matters; Exceptions

 However, the rules of court itself provides for admission of character
evidence, which to some degree may be collateral. s51(a [1]), R130
provides that good moral character of the accused is admissible in
cases where his character is pertinent to the moral trait involved in
the offense charged. In civil action, evidence of moral character of a
party is admissible when pertinent to the issue of character involved
in the action S51 (a[b]).

Relevancy vs. Materiality of Evidence

 Evidence may still be objected to for being immaterial. Materiality
should be determined whether the fact sought to be prove by such
evidence is in issue or not. As to whether a fact is in issue or not is in
turn determined by substantive law, by pleadings, by pre-trial order,
and/or admissions or confessions (Regalado, Rem. Law Comp., p.
579).

Bar Question (1981)

S is indebted to a bank. When the obligation falls due, he fails to pay and
the bank sues for collection. As part of the evidence of the bank, the
accountant of “S” is placed on a witness stand and in the course of his
examination he is asked if he in turn is also indebted to the bank.
The lawyer of S interposes two objections to the question (1) that it is
impertinent (2) it would therefore be improper to let him testify against
himself.
If you were the judge, how would you rule on the objections. (Sec. 3, Rule
128; Evidence is admissible when its relevant (test of relevancy) and is
not excluded ( test of competency) by the rules)

Exclusionary Rules (As to competency)

Under the Constitution and Statutes
1. Right against illegal searches and seizures (Sec. 2, Art. III, Const.)
2. Right against privacy of communication (Sec. 3, Art. III, Const.)
a. Editorial’s Privilege [RA 53 as amended by RA 1477]
b. Informer’s Privilege [Pp. v. Ong, G.R. No. 137348, June 21, 2004]
c. Anti Wire Tapping Law ([R.A. 4200]Torralba v. Pp. G.R. No. 153699
August 22, 2005)
3. Right against self incrimination (Sec. 17, Art. III, Cons.;In re: Sabio).
4. Confession and admission illegally obtained [Sec. 12, Art. III].
5. R.A. 1405 [Law on Secrecy of Bank Deposits] and RA 6426.
6. Sec. 201 of Tax Reform Act of 1997.
7. Child Witness Rule/Rape Shield Rule.

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Search and Seizures
 The Constitution secures every person against illegal search and
seizures (S. 2, Art. III, Const.). Any evidence obtained in violation of
this constitutional protection is a product of “poisonous tree” and
therefore inadmissible in evidence in any proceedings (S3[2), Art.
III). The requirement of search warrant therefore serves as a
limitation on the power of the state to gather evidence as a general
rule (Sec. 2, Art. III and Rule 126[s4] Rules of Court). However, this
right can be waive and subject to several exceptions. These are:
Exceptions to warrantless search and seizures (11 exceptions)
 Warrantless search incidental to lawful arrest;
 Consented search;
 Search of moving vehicle;
 Check points; body checks in airports & seaports;
 Seizure of evidence in plain view [Plainview doctrine];
 Stop and frisk situation;
 Enforcement of customs laws;
 Emergency cases [based on probable cause and extraordinary
cases];
 Those incident to inspection;
 In times of war within the area of military operation
 Enforcement of health and sanitary laws.

Privacy of Communications and Correspondence

 Sec. 3[1] Art. III of the Const. secures all persons against invasion of
their privacy so far as communications and correspondence are
concerned. This means that for every words or letters spoken or
written that are made in private, the constitutional guaranty apply.
Accordingly, evidence obtained in violation of this guaranty is
inadmissible in any proceedings (S3[2], Art. III)
Exceptions to privacy of comm. & correspondence
 The exception to this is (1) when there is lawful order of the court, or
(2) when public safety and order requires such invasion as prescribe
by law.
 R.A. 4200 [S4] (Anti-Wire Tapping Act) makes every evidence
obtained by using a device commonly known as a dictaphone or
dictagraph or walkie-talkie or tape recording in violation of the said
law inadmissible. It does not, however, cover conversation obtained
thru a party line (of a landline telephones).
Requisites for Admissibility of Tape Recordings [Torralba v.
Pp.]
 1) a showing that the recording device was capable of taking
testimony;
 (2) a showing that the operator of the device was competent;
 (3) establishment of the authenticity and correctness of the
recording;
 (4) a showing that changes, additions, or deletions have not been
made;
 (5) a showing of the manner of the preservation of the recording;
 (6) identification of the speakers; and
 (7) a showing that the testimony elicited was voluntarily made
without any kind of inducement (cited in Torralba vs. Pp.)

Exceptions to privacy of comm.

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  R.A. 9372- Human Security Act of 2007 – limits the authority of the
Court of Appeals to issue authorization respecting surveillance and
tapping of communications in cases of suspected terrorism
activities. It cannot be done against lawyers-clients, doctors-
patients, journalists, and confidential business correspondence [s7].
The authority given is valid only for 30 days subject to renewal.
Thus, evidence obtained in violation of this law is likewise
inadmissible in evidence.

 R.A. No. 53 [Amended by RA 1477] – Press Freedom – grants

journalists the right to refuse disclosure of their sources of
information, unless the security of the State is involved. Any
evidence breaching this confidentiality is inadmissible in evidence.
However, this right does not include refusal to a subpoena issued for
the journalist to appear in an investigation or hearing relating to the
matter published, or his possible prosecution for libel for untruthful
and defamatory article (A.M. No. 93-2-037 SC April 6, 1995,IN RE
Emil (Emiliano) P. JURADO )

Right against self incrimination

 Sec. 17, Art. III, Const. – also secures every person against
testimonial compulsion, which means that he cannot be forced to
give any statement against his will if the matter involved might
subject him to criminal prosecution, as this would be considered as
illegally obtained confessions. However, this does not cover
compulsion so far as mechanical acts are concerned, i.e.
handwriting, biological samples, etc. This right is connected with the
right to be presumed innocent (Sec. 14[2], Art. III)

 Sec. 17, Rule 119, ROC – State Witness Rule

 R.A. 1379 – grants immunity to witnesses in forfeiture of ill-gotten
cases.
 P.D. 739 – also grants immunity in bribery and graft cases.
 R.A. 6981 (Witness Protection, Security and Benefits Act [witness
protection program].

Rt. vs. Self-Incrimination; Immunity

Section 4(b) of E.O. No. 1 explicitly provides:
 No member or staff of the Commission shall be required to testify or
produce evidence in any judicial legislative or administrative
proceeding concerning matters within its official cognizance. (was
declared unconstitutional In re: Sabio vs. Gordon, et al. G.R. No.
174340 October 17, 2006). The right vs. self-incrimination does
cover refusal to attend hearings called by the Senate. It can be
invoked only when questions are propounded.
 Section 4(b) of E.O. No. 1 explicitly provides:
 No member or staff of the Commission shall be required to testify or
produce evidence in any judicial legislative or administrative
proceeding concerning matters within its official cognizance. (was
declared unconstitutional In re: Sabio vs. Gordon, et al. G.R. No.
174340 October 17, 2006). The right vs. self-incrimination does NOT
cover refusal to attend hearings called by the Senate. It can be
invoked only when questions are propounded.

Confessions to be ADMISSIBLE

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  Confessions to be admissible must comply with Sec. 12, Art. III (the
Miranda Doctrine) and R.A. 7834(An Act Defining the Rights of
Arrested Person, Detained or Under Custodial Investigation; 4/27/92).
The suspect must be informed of his right to remain silent, provided
with independent and competent counsel preferably of his choice
(this right cannot be waived except in writing with assistance of
counsel [Morales vs. Enrile; p. v. Sison]. It must be voluntary.

Exclusionary Rule under Bank Deposits Act

 R.A. 1405 [Law on Secrecy of Bank Deposits] and R.A. 6426 [Foreign
Currency Deposit Act] prohibits bank official or employee from
disclosing to any person any information concerning deposits,
including investments in bond issued by the Government, and its
political subdivisions and instrumentalities, and may not be
examined, inquired or looked into by any person, government
official, bureau or office.

Exceptions to bank secrecy deposit

 However, under any of the following instances deposits may be
examined:
 1. Upon permission by the depositor;
 2. In cases of impeachment;
 3. By order of a competent court in cases of bribery or dereliction of
duty by public officials;
 4. In cases where the deposit or investment is the subject matter of
litigation;
 5. Examination of a bank authorized by the Monetary Board based
on reasonable ground that bank fraud or serious irregularity has
been or is being committed;
 6. In cases of unexplained wealth (Sec. 8, RA3019);
 7. Examination by independent auditors on banks
 8. Reporting of bank accounts to the Anti-Money Laundering Counsel
respecting covered transactions in cash or other equivalent
monetary instrument involving a total amount in excess of Five
hundred thousand pesos (PhP 500,000.00) within one (1) banking
day, or suspicious transactions regardless of the amount, and
examination under the said law by AMLC upon order by competent
court (RA9194);
 9. Examination made by the BIR Commissioner under Section F(c) of
NIRC on accounts of a decedent to determine his gross estate, and a
taxpayer who has filed an application for compromise his tax liability
by reason of financial incapacity to pay his tax liability;
 10. Inquiry into bank deposits, trusts or investment funds, or
banking transactions based on reasonable ground that they have
been used in support or in furtherance of the December 1989 coup
d’ etat, under RA 6832

Exclusionary Rules (As to competency)

1. Rules on examination of child witness
SEXUAL ABUSE SHIELD RULE ALSO KNOWN AS RAPE SHIELD
RULE:

The following are inadmissible in any criminal proceeding

involving the alleged child sexual abuse:
1. Evidence offered to prove that the alleged victim engaged in
other sexual behavior;

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 2. Evidence offered to prove the sexual predisposition of the
alleged victim.

Exception: evidence of specific instance of sexual behavior by

the alleged victim to prove that a person other than the
accused was the source of semen, injury or other physical
evidence shall be admissible.

2. Under the Rules of Court

2.1. Mental incapacity or immaturity (Sec. 21, R130 - Compare with
S2, R92)
2.2. Marital Disqualification or Spousal Immunity (Note:Alvarez v.
Ramirez)
2.3. Dead Man’s Statute ([S23]Icard v. Masigan)
2.4. Privileged Communication (S.24)
2.4.1. Husband and Wife
2.4.2. Lawyer-Client (note the last link doctrine)
2.4.3. Doctor-Patient
2.4.4. Priest-Confessant
2.4.5.Public Interest Privilege
( Neri vs. Senate: Operational Proximity Test and Presidential
Communications Privilege; Senate v. Ermita)
2.5. Parental and Filial Privilege (Sec. 25, R130).

Exclusionary Rules ROC

 NOTE: All persons who can perceive, and perceiving, can make known
their perceptions to others may be a witness (S20, R130). The
qualifications or disqua-lifications of a witness is determined at the
time he is presented in court or the taking of their depositions (it is
submitted however that if the witness is a child of tender years his
competence at the time of the occurrence of the fact being testified
should be considered). Generally, the interest of a witness in the
subject matter of the action does not disqualify him to testify, except
when it is covered by the Survivorship Disqualification Rule (S23).

S21, R130, ROC – The following cannot be a witness:

 1. Those whose mental conditions at the time they are to testify are
incapable of intelligently making known their perception to others;

 2. Children whose mental maturity rendering them incapable of

perceiving the facts they are being examined and to relate them
truthfully.

Compared with Incompetents under Rule 92, S2ction 2

(guardianship)
 Sec. 2. Incompetent includes persons suffering the penalty of civil
interdiction or hospitalized lepers, prodigals, deaf and dumb who are
unable to read and write, those who are of unsound mind, even
though they have lucid intervals, and persons not being of unsound
mind, by by reason of age, disease, weak mind, and other similar
causes, cannot, without outside aid, care themselves and manage
their property, becoming thereby an easy prey for deceit and
exploitation.

Marital Disqualification; Disqualification applies only during the

marriage (S22, R130)

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  “During their marriage, neither the husband nor the wife may testify
for or against the other without the consent of the affected spouse,
except in a civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the latter’s direct
descendants or ascendants.” NOTE: THIS RULE IS SUBJECT TO
WAIVER (P. v. Francisco, 78 Phil. 694). Also, a co-defendant wife
cannot be called to testify as adverse witness (Lezama, etal. v.
Rodriguez, et al., June 27, 1968).

 S22 of R130, disqualify a spouse from testifying against his spouse

who is a party to an action, during the lifetime of their marriage,
adverse or favorable testimony, and whether it is crim. or civil cases.
It also apply whether the facts to be testified occurs before or during
their marriage.
 EXCEPTIONS:
 1. In a civil case between the spouses;
 In a criminal case committed by a spouse vs. the other, or the
latter’s direct descendants or descendants.

 G.R. No. 143439 October 14, 2005, Alvarez vs. Ramirez – When there
is no more harmony and tranquility to protect and preserve. “It
should be stressed that as shown by the records, prior to the
commission of the offense, the relationship between petitioner and
his wife was already strained. In fact, they were separated de facto
almost six months before the incident. Indeed, the evidence and
facts presented reveal that the preservation of the marriage
between parties is no longer an interest the State aims to protect.”

DEAD MAN’S STATUTE (Survivorship Disqualification Rule

 S23, R130 –”Disqualification by reason of death or insanity. – Parties
or assignors of parties to a case, or persons in whose behalf a case
is prosecuted, against an executor or administrator or other
representative of a deceased, or against a person of unsound mind,
upon a claim or demand against the estate of such deceased person
or against such person of unsound mind, cannot testify as to any
matter of fact occurring before the death of such deceased person or
before such person became of unsound mind.”

Dead Man’s Statute

 This exclusionary rule (disqualification) applies only to a civil action
or special proceeding. REQUISITES:
 1. Defendant is the exec. or adm. or rep. of the deceased or of
unsound mind;
 2. The case is upon a claim by the plaintiff against the estate of such
persons;
 3. Witness is the plaintiff, assignor of the latter or a person in whose
behalf the case is prosecuted.
 4. The subject of the testimony are matters occurring before the
death or before the person became of unsound mind.

Representatives of the deceased

 Executors, Administrators, Assignees, Heirs, or those who acts as
representative capacity or succeeds the deceased or person of
unsound mind.
 Thus, even if the property has already been judicially adjudicated to
the heirs, they can still invoked the disqualification as they are

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 considered as the representatives of the deceased (Goñi, et al. vs.
CA, Sept. 23, 1986)

Icard vs. Masigan -G.R. No. L-47442April 8, 1941

Dead Man’s Statute (Exception)
 Rule 130, section 23 of the Rules of Court, is designed to close the
lips of the party plaintiff when death has closed the lips of the party
defendant, in order to remove from the surviving party the
temptation to falsehood and the possibility of fictitious claims
against the deceased. Where, as in the instant case, the purpose of
the oral testimony is to prove a lesser claim than what might be
warranted by clear written evidence, to avoid prejudice to the estate
of the deceased, the law has certainly no reason for its application.
Ratione cessante, cessat ipsa lex.

 It does not apply when testimony is intended to prove fraudulent

transaction of the deceased (Ong Chua v. Carr G.R. No. 29512-
1/17/29), provided such fraud is first established by evidence
aliunde (Babao vs. Perez, 102 Phil. 756). It has no application to a
mere witness (Reyes vs. Wells, 54 Phil. 102 Reyes vs. Wells, 54 Phil.
102).It does not apply when witness is the respondent or where
there is waiver by reason of cross-examination (Londres, et al. v. CA,
G.R. No. 136427, 12/17/02).

 The prohibition does not apply also where the witness is an

oppositors in land registration cases as they are considered
defendants and therefore may testify against the petitioners
(Nañagas v. Mun. of San Narciso, 53 Phil. 719). It does not apply also
in cadastral cases, there being no plaintiff or defendant therein
(Tongco v. Vianzon, 50 Phil. 698).

Privilege Communications [S24] Matters learned in CONFIDENCE

 1. Marital privileged communications – “The husband or the wife,
during or after the marriage, CANNOT BE EXAMINED without the
consent of the other as to any communication received in confidence
by one from the other during the marriage except in a civil case by
one against the other, or in crim. Case for a crime committed by one
against the other or the latter’s direct descendants or ascendants.”
 Here, the objection is against the testimony, not of being a witness
under S22.

Marital Privilege
 REQUISITES:
 A. Valid marriage bet. the spouses;
 B. Communication made in confidence by one to the other;
 C. It must be made during the marriage;
 NOTE: The privileged extends beyond the existence of the marriage
and does not require a spouse to be a party to a case. However,
communications not intended to be confidential are not covered
(U.S. v. Antipolo, 37 Phil. 726) or where communications is
overheard or comes into the hands of a third party (People vs.
Carlos, 47 Phil. 626. It is necessary, however, that there is no
collusion between the spouse and the third party Regalado, p. 614).

Lawyer-Client privilege

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  “An attorney cannot, without the consent of his client, be examined
as to any communication made by the client to him, or his advice
given thereon in the course of, or with a view to, professional
employment, nor can an attorney’s secretary, stenographer, or clerk
be examined, without the consent of the client and his employer,
concerning any fact the knowledge of which has been acquired in
such capacity.”

 2. Requisites:
 A. Lawyer-Client relationship;
 B. Matters involves confidential information during the course of
professional employment;
 C. Client did not give consent to lawyer’s testimony; or if it is the
lawyers sec, clerk, stenographer that is sought to be examined the
client and the lawyer have not consented thereto.
 N.B. The privilege covers verbal statements, docs. or papers
entrusted to the lawyer and facts learned therefrom.

 Note that the privilege will not cover intended crimes to be

committed [but only past crimes] as the engagement must be for
lawful purpose. Future crimes destroys the lawful purpose of the
engagement because it is the duty of every person to report the
commis-sion of a crime.

 The Last Link Doctrine – the identity of the client is protected (as
to confidentiality) if revelation of such information would result to
revealing the privileged communication.

Lawyer-client privilege-exceptions
 Client identity is privileged where a strong probability exists that
revealing the client's name would implicate that client in the very
activity for which he sought the lawyer's advice;
 Where disclosure would open the client to civil liability;
 Where the government's lawyers have no case against an attorney's
client unless, by revealing the client's name, the said name would
furnish the only link that would form the chain of testimony
necessary to convict an individual of a crime, the client's name is
privileged [ANGARA, et al. vs. SANDIGANBAYAN, et al. G.R. No.
105938 September 20, 1996].
 The privilege does not apply also to communications which are:
1. Intended to be made public;
2. Intended to be communicated to others;
3. Intended for an unlawful purpose;
4. received from third persons not acting in behalf or agents of the
client;
5. made in the presence of third parties who are strangers to the
lawyer-client relationship (Regalado, p.616)
Bar Question (2008)
On August 15, 2008, Edgardo committed estafa against Petronilo in
the amount of P3M. Petronilo brought his complaint to the NBI which
found that Edgardo had visited his lawyer twice, the first time on
August 14, 2008 and the second on August 16, 2008; and that both
visits concerned the swindling of Petronilo. During the trial of Edgardo,
the RTC issued a subpoena ad testificandum to Edgardo’s lawyer for
him to testify on the conversations during their first and second

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 meetings. May the subpoena be quashed on the ground of privileged
communication? Explain fully.

Doctor-Patient Privilege
(c) “A person authorized to practice medicine, surgery, or obstetrics
cannot in a civil case, with the consent of the patient, be examined as to
advice or treat-ment given by him or any information which he may have
acquired in attending such patient in a professional capacity, which
information was necessary to enable him to act in that capacity, and which
would blacken the reputation of the patient.”

Lim vs. CA, [G.R. No. 91114, 25 September 1992, 214 SCRA 273] laid down
the ff. requisites:

(a) the privilege is claimed in a civil case;

(b) the person against whom the privilege is claimed is one duly
authorized to practice medicine, surgery or obstetrics;
(c) such person acquired the information while he was attending to
the patient in his professional capacity;
(d) the information was necessary to enable him to act in that
capacity; and
(e) the information was confidential and, if disclosed, would blacken
the reputation (formerly character) of the patient. (see also Krohn v.
CA, 233 scra 146; Sec. 4, Rule 28)

Krohn vs. CA
FACTS:
Petitioner seeks to enjoin the presentation and disclosure of the
contents of the psychiatric report (BY HER HUSBAND) and prays for
the admission of her Statement. She argues that since Sec. 24, par.
(c), Rule 130, of the Rules of Court prohibits a physician "WITH MORE
REASON should be third person (like respondent-husband be
prohibited from testifying on privileged matters between a physician
and patient or from submitting any medical report, findings or
evaluation prepared by a physician which the latter has acquired a
result of confidential and privileged relation with a patient.

RULING:
Petitioner's discourse while exhaustive is however misplaced. Lim v.
Court of Appeals clearly lays down the requisites in order that the
privilege may be successfully invoked: (a) the privilege is claimed in
a civil case; (b) the person against whom the privilege is claimed is
one duly authorized to practice medicine, surgery or obstetrics; (c)
such person acquired the information while he was attending to the
patient in his professional capacity; (d) the information was
necessary to enable him to act in that capacity; and, (e) the
information was confidential and, if disclosed, would blacken the
reputation (formerly character) of the patient.

Exceptions to Doctor-Patient Privilege

 The privilege does not apply where comm.:
 1. Is not given in confidence;
 2. Irrelevant to the professional employment;
 3. Made for unlawful purpose;
 4. Intended to be made public; or
 5. There was waiver either by contract or law.

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  Accordingly, Examinations under Rule 28 (Modes of discovery) or
post mortem examination are not covered by the privilege
(Regalado, p. 617).

Priest – Penitent Privileged

 “A minister or priest cannot, without the consent of the person
making the confession, be examined as to any confession made to
or any advice given by him in his professional character in the
course of discipline enjoined by the church to which the minister or
priest belongs.”

 Requisites: Communication must be:

 1. Made in the course of religious duty (prof. capacity) enjoined by a
sect or denomi-nation to which the priest belong (Priest-Penitent
relationship);
 2. Priest must be licensed (authorized by his denomination/sect;
 3. Communication must be confidential and penitential in character.
 Note: Matters discussed outside the scope of the foregoing can not
be privileged.

Public Officers Privilege

 “A public officer cannot be examined during his term of office or
afterwards, as to communications made to him in official confidence,
when the court finds that the public interest would suffer by the
disclosure.

 Requisites:
 1. It was made to pub. officers in Official Confidence;
 Public interest would suffer by the disclosure of such communication.
 A) Banco Filipino v. Monetary Board [142 sca 528 (1986)] - Public
interest means more than a mere curiosity; it means something in
which the public, the community at large, has some pecuniary
interest by which their legal rights or liabilities are affected.
 Note: the privilege is for the protection of the office not the officer.

State Secrets – Public Office

 Pp. v. Ong [G.R. 137348, 6/21/04](citing U.S. v. Nixon) – On the
disclosure of confidential informer vs. right of the accused to
confront witnesses.
 the scope of the privilege is limited by its underlying
purpose: 1) If disclosure of the contents of the communication will
not tend to reveal the identity of an informer, the contents are
not privileged; 2) once the identity of the informer has been
disclosed to those who would have cause to resent the
communication, the privilege is no longer applicable; 3.
Where the disclosure of an informer’s identity, or the contents of his
communication, is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause,
the privilege must give way.
 there must be balancing of the state interest in protecting people
from crimes against the individual’s right to prepare his defense. The
balance must be adjusted by giving due weight to the following
factors, among others: (1) the crime charged, (2) the possible
defenses, (3) the possible significance of the informer’s testimony,
and (4) other relevant factors

11
  executive privilege as "the power of the Government to
withhold information from the public, the courts, and the
Congress. There is presumptive privilege for Presidential
communications. There is non below the president. The doctrine of
"operational proximity" (must go with organizational test) requires
the determination how close a public official to the president and
what communications took place to determine whether or not the
privilege should apply.

Parental & Filial Privilege

2.5. Parental and Filial Privilege – The privilege given not to testify against
direct ascendants, parents, children and other direct descendants.

Note, however, that under Art. 215 (Art. 315, Civil Code) of the Family
Code they may be compelled to testify vs. parents or grandparents if
indispensable in prosecuting a crime.

Judicial Notice and Judicial Admission

There are matters in an action or proceeding which
can be prove without presenting evidence [or need not
be proved]. These are covered either by:

1. Mandatory [S.1] or Discretionary Judicial Notice [Secs. 2-3, Rule 129].

2. Facts admitted or not denied, if they are sufficiently alleged [Sec.1, Rule
8].
3. Facts legally presumed [sec. 3, Rule 131].
4. Judicial Admissions [Sec. 4, Rule 129]

 Presumed facts – R131

◦ 3.1. Conclusive Presumptions
◦ 3.2. Disputable Presumptions

Rationale for Judicial Notice

 Judicial notice is simply based on considerations of expediency and
convenience. Courts and parties litigants should not be burdened of
trying facts that are already known. For example, there is no need to
prove territory comprising the Philippine archipelago, the Islands of
Mindanao, Visayas and Luzon, nor the various States of USA. Neither
would evidence be required what kind or form of government do we
have and how it was established. There is likewise no need to prove
the law of nations, treatises and executive agreements we entered
into because they are deemed part of the law of the land pursuant to
Sec. 2, Art. II of the Const. However, we must distinguish
international law, treaties and executive agreements from a
domestic law of a foreign state.

DOCTRINE OF PROCESSUAL PRESUMPTION

 Under the doctrine of processual presumption a law of a foreign
State must be prove. This is so because issue of what are these
foreign law is a question of fact, not question of law [PCIB V.
ESCOLIN, March, 29, 1974]. To prove these foreign law it must be
prove either: 1] by its official publication, or 2] by its duly attested
and authenticated copy, pursuant to Secs. 24 and 25 of Rule 132 of
the ROC providing that:

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  Sec. 24. Proof of official Record. The record of public documents
referred to in par. a of Sec. 19 , when admissible for any purpose,
may be
How to prove foreign law
 evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by
his deputy, and accompanied, if the office is not kept in the Phil.,
with a certificate that such officer has the custody. If the office in
which the record is kept is in foreign country, the certificate may be
made by a secretary of the embassy or legation, consul general,
consul, vice-consul, or consular agent or by any officer in the foreign
service of the Phils. stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.
 Par. a of Sec. 19 (public docs.) refers to “written official acts, or
records of the official acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of the Phils., or of a
foreign country.
 Sec. 25. What attestation of copy must state- Whenever a copy of a
document or record is attested for the purpose of evidence, the
attestation must state, in substance, that the copy is a correct copy
of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of court having a seal, under
the seal of such court.

 Exception: when the said laws are already within the actual
knowledge of the court, such as when they are well and
generally known or they have been actually ruled upon in
other cases before it and none of the parties claim otherwise
[PCIB v. Escolin, citing Moran, Comments on the Rules of Court].
Accordingly, under this doctrine if that foreign law is not
prove by evidence than it will be presumed that it is the
same as our law, in which case our law shall be applied.

Rationale [Examples of Mand. JUD. NOTICE]

 there is no need to prove that Congress passed a bill, and there is no
need to prove that such bill was signed by the President into law, nor
CJ Corona was convicted by the Senate sitting as impeachment
court. Neither should the court be burdened by a litigant to receive
evidence that the Supreme Court had passed judgment on the
validity of the Martial Law proclamation by Pres. Marcos because
courts are even mandated to know the decisions of the SC, which
are deemed part of the law of the land pursuant to Art. 8 of the Civil
Code.

Judicial Notice
 Clearly therefore, Judicial notice substitutes the requisite evidence to
prove a fact. When judicial notice is properly invoked by a party to
an action his obligation to prove a fact by evidence is dispensed
with. However, judicial notice can not deprive the adverse party to
prove a disputed fact. Accordingly, when a matter in dispute is
covered by mandatory judicial notice courts must therefore take
cognizance of such fact. This does not require notice and hearing.

 In contrast, where matters is merely a subject of discretionary

judicial notice the court may take the same motu proprio or by

13
 motion of a party. During trial, the court may announce its intention
to take judicial notice of any matter, and the court may allow parties
to be heard (sec. 3, R129). The hearing is not to prove the issue in
the case but merely to determine the propriety of taking judicial
notice. Under Sec. 2, Rule 129 a court may take discretionary judicial
notice where:

Facts Covered By Mand. Jud. Notice

Judicial notice – R129 [S1]
 Mandatory –
1. The existence and territorial extent of states;
2. Political history, forms of government and symbols of
nationality of states;
3. The law of nations (note: laws of other states-doctrine
of processual presumption);
4. Admiralty and maritime courts of the world and their
seals;
5. Political constitution and history of the Philippines;
6. Official acts of legislative, executive and judicial
departments of the Philippines;
7. Laws of nature;
8. Measure of time;
9. Geographical divisions.

Discretionary judicial notice

 1. matters are of public knowledge;
 2. matters are capable of unquestionable demonstration;
 3. matters ought to be known to judges by reason of their judicial
functions (Sec. 2, Rule 129).

◦ Apparently, the matter of discretionary judicial notice rests on

sound judicial discretion and wisdom of the court. It must,
however, be exercised with caution. Any doubt whether taking
judicial notice is proper or not must be resolved against the
taking of judicial notice (State Prosecutors vs. Muro; A.M. RTJ-
92-876; 9/19/94).

Time to Take Judicial Notice

 Judicial notice can be taken by a court during the trial, after the trial,
and before judgment, or on appeal (Sec. 3, Rule 129).
 During trial, the court may take judicial notice on any matter that is
relevant to the fact in issue.
 After the trial, and before judgment, or on appeal, however, the
court can take judicial notice on any matter which is decisive of a
material issue in the case.

Judicial Admissions (s4, R129)

 Judicial admissions are admissions, written or oral, made by a party
in the course of judicial proceedings. S4, R129 provides that “An
admission, verbal or written, made by a party in the course of
judicial proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was made
through palpable mistake or that no such admission was made.
 NOTE THAT ADMISSION MUST BE MADE IN THE SAME CASE.
Admissions and Confessions (Party Admissions)

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S26, R130: the act, declaration or omission of a party as to relevant fact
may be given in evidence [Estrada vs. Desierto, 356 SCRA 108].

 Forms of Admissions

◦ Admission by conduct [Sec. 34, R132]

◦ Offer of compromise [Sec. 27, ]
◦ Admission by silence [Sec. 32]

** Admission against interest vs. declaration against interest [S38, R130;

Ong vs. CA].

Res Inter Alios Acta Alteri Nocere Non Debet [S28, R130];
Exceptions
 Admission by co-partner or agent of a party [s29]
 Admission by co-conspirator [s30; Art. 8, RPC]
 Admission by privy of party [s31]

Bar Question (2008)

The mutilated cadaver of a woman was discovered near a creek. Due to
the witnesses attesting that he was the last person seen with the
woman when she was alive, Carlito was arrested within five hours after
the discovery of the cadaver and brought to the police station. The
crime laboratory determined that the woman had been raped. While in
the police custody, Carlito broke down in the presence of an assisting
counsel and orally confessed to the investigator that he had raped and
killed the woman, detailing the acts he had performed up to the
dumping of the body near the creek. He was genuinely remorseful.
During the trial, the State presented the investigator to testify on the
oral confession of Carlito. Is the oral confession admissible as evidence
of guilt?

Conduct As Evidence
 Similar Acts Rule
Evidence that one did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the same or similar thing at
another time;

Exceptions: specific intent, plan, knowledge,

Identity, scheme, system, habit, custom, usage and the like

Bar Question (2004)

Through his lawyer plaintiff A sent to defendant B, through B’s counsel,
a request for admission of certain facts stated therein material to the
case pending between them. B did not reply at all.
On appeal from an adverse decision, A assigned as error the trial
court’s disregard of the facts, the admission of which was the subject
of his unanswered request. A contended that as his request for
admission forms part of the records of the case, although not formally
submitted in evidence, and the records do not show that the
defendant ever replied thereto, there was a clear judicial admission by
the defendant of all the material facts stated in the request, and that
had the trial court considered such admissions, it would have been
contrary to the findings of fact. Is the plaintiff correct?

Bar Question (2003)

15
 X and Y were charged of murder. Upon application of the prosecution,
Y was discharged from the information to be utilized as a state
witness. The prosecutor presented Y as witness but forgot to state the
purpose of his testimony much less offer it in evidence. Y testified
that he and X conspired to kill the victim but it was X who actually shot
the victim. The testimony of Y was the only material evidence
establishing the guilt of X. Y was thoroughly cross examined by the
defense counsel. After the prosecution rested its case, the defense
filed a motion for demurrer to evidence based on the following ground:
Y’s testimony is not admissible against X pursuant to the rule on res
inter alios acta.
Rule on the motion for demurrer.

Bar Question (2008)

Bembol was charged with rape. Bembol’s father, Ramil, approached
Artemon, the victims father, the victim’s father, during the P.I. and
offered P1M to Artemon to settle the case. Artemon refused the offer.
a. During trial, the prosecution presented Artemon to testify on Ramil’s
offer and thereby establish an implied admission of guilt. Is Ramil’s
offer to settle admissible in evidence?
b. During PT, Bembol personally offered to settle the case for P1M to
the private prosecutor, who immediately put the offer on record in the
presence of the trial judge. Is Bembol’s offer a judicial admission of his
guilt?

Bar Question (2009)

Arrested in a buy-bust operation, Edmond was brought to the police
station where he was informed of his constitutional rights. During the
investigation, Edmond refused to give any statement. However, the
arresting officer asked Edmond to acknowledge in writing that six (6)
sachets of “shabu” were confiscated from him. Edmond consented and
also signed a receipt for the amount of P3,000.00 allegedly
representing the purchase price of the shabu”. At the trial, the
arresting officer testified and identified the documents executed and
signed by Edmond. Edmond’s lawyer did not object to the testimony.
After the presentation of the testimonial evidence, the prosecutor made
a formal offer of evidence which included the documents signed by
Edmond.
Edmond’s lawyer objected to the admissibility of the documents for
being the “fruit of the poisonous tree”. Resolve the objection with
reasons.

Bar Question (2009)

Blinded by extreme jealousy, Alberto shot his wife, Betty in the
presence of his sister, Carla. Carla brought Betty to the hospital.
Outside the operating room, Carla told Domingo, a male nurse, that it
was Alberto who shot Betty. Betty died while undergoing emergency
surgery. At the trial of the parricide charges filed against Alberto, the
prosecutor sought to present Domingo as witness, to testify on what
Carla told him. The defense counsel objected on the ground that
Domingo’s testimony is inadmissible for being hearsay. Rule on the
objection with reasons.

Rules on Electronic Evidence

 What are electronic documents?

16
 ◦MCC Industrial Corp. v. Ssangyong Corp., 17 October 2007
(Nachura, J.) = it does not include fax transmission unless
computer-generated, and telexes.
◦ RA 8792 does not make the internet a medium for publishing
laws, rules and regulations ( Garcillano vs. House of Rep.
Comm on Public Info, 575SCRA170, 2008)
 Admissibility/ Applicability
◦ Same as under the Rules of Court (Sec. 2, Rule 1 of REE)
◦ Authentication under REE
 Requisites of authentication, to present:
 Evidence that it had been digitally signed by the
person purported to have signed the same;
 Evidence that other appropriate security
procedures for authentication were applied to the
documents
 Other evidence showing integrity and reliability

Rules on Electronic Evidence

 P, a court employee sent text messages to A demanding one million
pesos in exchange for the release of L, A’s relative, from the National
Penitentiary. P admitted sending the text messages to A. The
Investigating Officer, in finding P guilty of inefficiency and gross
misconduct, considered the text messages sent by P to A.

 Text messages have been classified as “ephemeral electronic

communication” under the REE and “shall be proven by t he
testimony of a person who was a party to the same or has
personal knowledge thereof.

 Q: P, a court employee sent text messages to A demanding one

million pesos in exchange for the release of L, A’s relative, from the
National Penitentiary. P admitted sending the text messages to A.
The Investigating Officer, in finding P guilty of inefficiency and gross
misconduct, considered the text messages sent by P to A.

A: Text messages have been classified as “ephemeral electronic

communication” under the REE and “shall be proven by the testimony of a
person who was a party to the same or has personal knowledge thereof.

Rules on DNA Evidence

 Post-Conviction DNA Testing may be available without need of prior
court order, to the prosecution of any person convicted by final and
executory judgment provided that:
1. A biological sample exists;
2. Such sample is relevant to the case; and
3. The testing would probably result in the reversal or
modification of the judgment of conviction.

 DNA Testing Result

 If the value of probability of paternity is less than 99.9% the
results of the DNA testing shall be considered as corroborative
evidence.
 If equivalent to 99.9% or higher, there shall be a disputable
presumption of paternity.

DNA RULE – VALLEJO DOCRTRINE

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  Under AM No. 06-11-5 SC the courts are authorized, motu propio or
upon application of any person who has legal interest in the matter
in litigation, to order a DNA testing (Effective: October 15, 2007).
 Reliability of DNA testing methodology as enunciated in the case of
Pp. vs. Vallejo (2002):
◦ How samples were collected
◦ How samples were handled
◦ Possibility of contamination of samples
◦ Procedure followed in analyzing samples
◦ Qualification of analyst who conducted the test.

Rules of Small Claims

 No evidence shall be allowed during the hearing which was not
attached to or submitted together with the Claim, UNLESS good
cause is shown for the admission of additional evidence.

Best Evidence Rule

 When does it apply ?
When the contents of the document is the subject of inquiry
 Exceptions:
1. Loss, destruction or unavailability
2. Original is in the custody or control of adverse party
3. Original consists of numerous accounts
4. Original is a public record
 Introduction of secondary evidence,
1. Requisites:
1.1. Proof of execution and existence
1.2. Cause of unavailability
1.3. Absence of bad faith
2. Order of presentation
2.1 Copy of original
2.2. Recital of contents of document in some authentic
document
2.3. Testimony of witness

Parol Evidence Rule

 Statement of the rule and rationale
 When does it apply?
 applies to contracts only (prior and contemporaneous
agreement which are deemed to have been merged in the
writing conformably to the “integration of the agreement
rule”)
 applies only to contracting parties or their privies to the
contract whose interest are adverse and not to strangers.
 Exceptions (Provided it is put in issue in the pleadings):
 Intrinsic ambiguity, mistake or imperfection
 Failure to express true intent of the parties
 Validity of written agreement
 Terms agreed after the execution of the written agreement

Hearsay Evidence Rule

 Statement of the rule and rationale
 Exceptions and their requisites:
1. Dying declaration (Sec. 37)
2. Declaration against interest (Sec. 38)
3. Acts or declaration about pedigree (Sec. 39)

18
 4. Entries in the course of business (Sec. 43)
5. Testimony or deposition at a former proceeding (Sec.47)
6. Family reputation or tradition regarding pedigree (Sec. 40)
7. Common reputation (sec. 41)
8. Parts of res gestae (Sec. 42)
9. Entries in official records (Sec. 44)
10. Commercial list and the like (Sec. 45)
11. Learned treatises (Sec. 46)
12. Opinion (Secs. 49 & 50)
13. Rule on DNA Evidence
** items number 1 to 5 requires death / unavailability of declarant.

Exception to Hearsay Rule

 DYING DECLARATION
 Declarant should die
 Declarant conscious of impending death
 Declaration relates to cause and circumstances surrounding
declarant’s death.
 Declarant must otherwise be competent.
 A statement which is not admissible as a dying
declaration may be admitted as part of the res
gestae

 DECLARATION AGAINST INTEREST

 As distinguished from party admission which is made by a
party, a declaration against interest is made by a non-party
to the action, who is dead or unable to testify, who was aware
that his declaration was against his interest [Ong v. CA, G.R.
47674].
 Against interest means against the declarant’s pecuniary,
moral and penal interest.

 ACT OF DECLARATION ABOUT PEDIGREE

◦ The declaration must be about the pedigree of a relative, that
is a person related to the declarant by birth or marriage;
◦ The declarant’s relation by birth or marriage to the relative
must be preliminarily proved by independent evidence other
than the declaration.
◦ the word "pedigree" includes relationship, family genealogy,
birth, marriage, death, the dates when and the places where
these facts occurred, and the names of the relatives [ Ducusin
v. CA, G.R. No. L-58286 May 16, 1983].

 BUSINESS ENTRIES
◦ Entries made at or near the time of the transactions to which
they refer, by a person deceased or unable to testify, who was
in the position to know the facts stated therein.
◦ The entrant must have made entries in his professional
capacity or in the performance of duty and in the ordinary or
regular course of business or duty.
◦ Entrant should have personal knowledge of the information he
is entering.
◦ Not limited to business in the ordinary sense of the word
(jueteng bookie is a business record)

 FORMER TESTIMONY OR DEPOSITION

19
 ◦ Testimony or deposition of a witness deceased or unable to
testify, given in a former case or proceeding, judicial or
administrative involving the same parties and subject matter,
may be given in evidence against the adverse party who had
the opportunity to cross examine the witness.
◦ Toledo, Jr. v. People and Judge R. Kapunan, Jr. (9/30/780) Where
the witness are available but refused to testify they do not
come under this exception. Inability to testify should proceed
from grave cause (almost death, old age and lost of his power
of speech).

 RES GESTAE “things have been done”

◦ Two exceptions
 Excited utterances
 Verbal acts
 Reason for exception- truth of the verbal act is
irrelevant, what is impt. is that the statement gives
legal significance to the equivocal act, even if the
one uttering the statement did not mean it to be
true.

 FAMILY REPUTATION OR TRADITION REGARDING PEDIGREE

◦ The witness testifying thereto must be a member, by
consanguinity or affinity of the same family as the subject;
◦ Such reputation or tradition must have existed in that family
ante litem motam.
 COMMON REPUTATION
◦ Existing previous to the controversy, respecting facts of public
or general interest more than 30 y/o or respecting marriage or
moral character, may be given in evidence. Monuments and
inscriptions in public places may be received as evidence of
common reputation.

 OFFICIAL RECORDS
◦ Entries were made by a public officer in the performance of his
duties or by a person in the performance of a duty specially
enjoined by law.
◦ Entrant had personal knowledge of the facts stated by him or
such facts were acquired by him from reports made by persons
under a legal duty to submit the same.
◦ Such entries were duly entered in a regular manner in the
official records.

 LEARNED TREATISES
◦ A published treatise, periodical or pamphlet on a subject of
history, law, science, or art is admissible as tending to prove
the matter stated therein if the court takes judicial notice or a
witness expert in the subject testifies that the writer of the
statement in the treatise, periodical or pamphlet is recognized
in his profession or calling as expert in the subject.

 COMMERCIAL LIST
◦ A statement of matters of interest to person engaged in
occupation;

20
 ◦ Such statement is contained in a list, register, periodical or
other published communication
◦ Said compilation is published for the use of persons engaged
in that occupation
◦ It is generally used and relied upon by persons in the same
occupation

Opinion Rule
 Expert witness (Sec. 49, Rule 130)
◦ Expert opinions are not ordinarily conclusive; When faced with
conflicting expert opinions, courts give more weight and
credence to that which is more complete, thorough and
scientific (Bacalso vs Padigos 552 SCRA 185, 2008)

 Ordinary witness (Sec. 50, Rule 130), as to :

◦ Handwriting
◦ Identity
◦ Sanity

 Witness may also testify on his impressions of the

emotion, behavior, condition or appearance

Bar Question (2005)

Dencio barged into the house of Marcela, tied her to a chair and
robbed her of assorted pieces of jewelry and money. Dencio then
brought Candida, Marcela’s maid, to a bedroom where he raped her.
Marcela could hear Candida crying and leading “ Huwag, maawa ka sa
akin!” After raping Candida, Dencio fled from the house with the loot.
Candida untied Marcela and rushed to the police station about a
kilometer away and told the police officer Roberto Maawa that Dencio
had barged into the house of Marcela, tied the latter to a chair and
robbed her of jewelry and money. Candida also related to the police
that despite her please, Dencio raped her. The policemen noticed that
Candida was hysterical and on the verge of collapse. Dencio was
charged with robbery with rape. During the trial, Candida can no
longer be located.
If the police officer will testify that he noticed Candida to be hysterical
and on the verge of collapse, would such testimony be considered as
opinion, hence, inadmissible in evidence? Explain.

Presentation of Evidence
GENERAL RULE: Document or object evidence to be considered must be
formally offered. The purpose must be specified.

THREEFOLD PURPOSE OF OFFER OF EVIDENCE:

1. To notify the party of possible objection, and for the
offeror to make necessary correction at the trial level to meet the
objection.
2. To allow the trial judge to rule properly
3. To lay basis for appeal so that the appellate court can
decided intelligently.

Formal Offer of Evidence

Section 34, Rule 132 of the Rules of Court, provides that "[t]he court
shall consider no evidence which has not been formally." A formal offer
is necessary, since judges are required to base their findings of fact

21
 and their judgment solely and strictly upon the evidence offered by
the parties at the trial.

To allow parties to attach any document to their pleadings and then

expect the court to consider it as evidence, even without formal offer
and admission, may draw unwarranted consequences. Opposing
parties will be deprived of their chance to examine the document and
to object to its admissibility. On the other hand, the appellate court will
have difficulty reviewing documents not previously scrutinized by the
court below (Candido v. Court of Appeals, 253 SCRA 78, 82-83,
February 1, 1996; Republic v. Sandiganbayan, 255 SCRA 438, 456,
March 29, 1996).

Exception:
When the evidence was previously identified by the witness and is
incorporated in
the records. The court may consider such evidence even if not formally
offered.

Bar Question (1991)

Two hours after Lt. Yap of the 2nd Air Division, PAF, at the Mactan Air
Base in Lapulapu City, was shot with a .45 caliber pistol, his Division
commander, Brig Gen A, visited him at the Cebu Doctor’s Hospital in
Cebu City where he was immediately brought before treatment of the
gunshot wound. Lt. Yap told A that it was Jose who shot him.
Forthwith, A, who is a law graduate took the initiative of taking down in
long hand the statement of Lt. Yap. The latter narrated the events
surrounding and categorically stated that it was Jose who shot him. Lt.
Yap signed the statement in the presence of A and the attending
nurse. Ten days later, Lt Yap died as a consequence of the gunshot
wound. An information for murder was filed against Jose.
At the trial, the above statement of Lt Yap marked as Exh X was
presented and identified by A who did not, however, testify that Lt. Yap
read it, or that it was read to him before Yap signed it. A,
nevertheless, testified that it was Jose who shot him. The defense
objected to the testimony of A and to the admission of Exh X on the
ground that they are hearsay. The prosecution contended that both
are exceptions to the hearsay rule as they are part of res gestae.
Is the prosecution correct? If the statement cannot be admitted as part
of the res gestae, may it be considered as a dying declaration?

Presentation of Evidence
 When to offer evidence
◦ Testimonial evidence- at the time the witness is called to
testify NOTE: The Judicial Affidavit Rule modified the rule on
examination of witnesses.
◦ Documentary and object – after the presentation of party’s
testimonial evidence and before he rests

 Objections
◦ Testimonial (As modified by Jud. Aff. Rule):
Before the Offer of Testimony, or at the very least, Before
the JA is authenticated by the witness
◦ Documentary and object evidence
When the document is offered in evidence

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  AUTHENTICATION & PROOF OF DOCS
 Classes of documents
a. Public Document (S19, R132;Pp. v. Cayabyab –BC is a
pub. record)
b. Private Document
1. Proof of private document
2. Ancient Document Rule : private document which need not be
authenticated

Bar Question (1990)

In the trial of a case on July 5, 1990, plaintiff offered in evidence a
receipt dated July 7, 1959 issued by defendant company which was
found in a cabinet for receipts of payment. It is without any blemish
or alteration. As no witness testified on the execution and
authenticity of the document, defendant moved for the exclusion of
this receipt notwithstanding that it is a private writing. Should the
said motion be granted? DENIED. The document is an ancient
document.

Weight and Sufficiency of Evidence

 Preponderance of evidence (Rule 133)

 Proof beyond reasonable doubt

 Substantial evidence

 Clear and convincing evidence

23