GROUP 1: Judicial Notice, Confessions and Admissions

What need not be proved?

Judicial Notice

One instance where courts will not or may not require the presentation of evidence is
when the courts take judicial notice of the factual allegations of the parties. The Rules on
Evidence identify specific situations where the courts either automatically or upon
request of the parties, recognize facts, without the need of evidentiary submissions.

Legal Basis

Revised Rules on Evidence, Rule 129, Section 1. Judicial notice, when mandatory.
— A court shall take judicial notice, without the introduction of evidence, of the existence
and territorial extent of states, their political history, forms of government and symbols
of nationality, the law of nations, the admiralty and maritime courts of the world and their
seals, the political constitution and history of the Philippines, the official acts of
legislative, executive and judicial departments of the National Government of the
Philippines, the laws of nature, the measure of time, and the geographical divisions.

Revised Rules on Evidence, Rule 129, Section 2. Judicial notice, when

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

Revised Rules on Evidence, Rule 129, Section 3. Judicial notice, when hearing
necessary. — During the pre-trial and the trial, the court, motu proprio or upon motion,
shall hear the parties on the propriety of taking judicial notice of any matter.

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

Judicial notice dispenses of the need for evidence. It is the [recognition] of certain facts
that judges may properly take and act on without proof because these facts are already
known to them. Put differently, it is the assumption [not presumption] by a court of a fact
without the need for further traditional evidentiary support. The principle is based on
convenience and expediency in securing and introducing evidence on matters which are
not ordinarily capable of dispute and are not bona fide disputed.

Generally speaking, matters of judicial notice have three material requisites: (1) the
matter must be one of common and general knowledge; (2) it must be well and
authoritatively settled and not doubtful or uncertain; and (3) it must be known to be
within the limits of the jurisdiction of the court. The court, on its own initiative, or when
any party asks for a hearing, may schedule a hearing on the matters for judicial notice.
During the pre-trial or trial stage, any matter for judicial notice shall be heard; before
judgment or on appeal, only matters decisive of a material issue in the case shall be heard.
But judicial notice is not judicial knowledge. The mere personal knowledge of the judge
is not the judicial knowledge of the court, and he or she is not authorized to make his or
her individual knowledge of a fact, not generally or professionally known, the basis of his
or her action. Judicial cognizance is taken only of those matters which are "commonly"
known. In the same way, the courts cannot take judicial notice of a disputed fact. For
instance, in a charge for malversation of public property, particularly an issue of firearm
that was recovered from a municipal mayor, the Court cannot take judicial notice of the
value of the gun since it is one of the disputed facts.
Mandatory Judicial Notice

Courts must necessarily take judicial notice of alleged facts based on the idea that the
alleged facts are of a universally proven, truthful character. Because these facts are
generally and widely accepted as true, the courts do away with what would otherwise be
the indispensable presentation of evidence. This rule not only unburdens the parties from
collecting and presenting evidence, but it also saves the courts time in hearing the cases.

For instance, the courts should take mandatory judicial notice of the declaration of
martial law in Mindanao because it forms part of Philippine political history and is as well
an official act of the executive department of the National Government. The courts should
also take mandatory judicial notice of the United Nations' Universal Declaration of
Human Rights, which is part of the law of nations. On the other hand, the courts do not
need to take mandatory judicial notice of an ordinance, which is passed by the local
legislative council (like the Sangguniang Bayan) because it is an act of the executive
department of the local government unit and is a local law.

Discretionary Judicial Notice

Courts can also take judicial notice of alleged facts when they do not fall under any of the
categories for mandatory judicial notice but fall under the categories in Rule 129, Section
2. If an alleged fact is of public knowledge, capable of unquestionable demonstration, or
ought to be known to judges because of their judicial functions, then the party alleging
them can ask the court to recognize it as fact, and in effect, ask to waive the requirement
of evidence. In this situation, courts are tasked to exercise their discretion or sound
judgment and take into consideration the character of the allegation, and how it will affect
the controversy being heard.

Examples:

1. In his affidavit, POl Espejo swore that when posing as a buyer of shabu, he called
the accused and said, "Randy, pa-iskor naman." The drug court took judicial notice
of the term "pa-iskor," which is a statement of interest in buying illegal drugs.
2. Dr. Chris Pascua was called in by the prosecution as a forensic expert in a homicide
case. Dr. Pascua frequently appears before the trial judge, as he is the sole
medicolegal doctor in the province. The court has the discretion to take judicial
notice of Dr. Pascua's qualifications as an expert witness because his occupation is
of public knowledge in the province and is known to the judge because of the
judge's official function.
3. During his testimony, Nico denied that he raped his girlfriend, Garrie, because, at
the time of the alleged assault, Garrie had her period. The trial court ruled that
Nico's denial deserved no merit and took judicial notice of the possibility of
intercourse during menstruation.
4. Sheila filed a case for bigamy against her husband, Ray. During the trial, Sheila
asked the court to take judicial notice of the marriage certificate proving the
marriage of Ray and Ella, which Ella presented in the annulment case against Ray.
The trial court in the bigamy case took judicial notice of the marriage certificate
because the factual issue of Ray's former marriage is a controversy in the criminal
action. Although courts are not authorized to take judicial notice of the records of
other cases, an exception is allowed when the other case has a close connection
with the controversy at hand.

Courts, however, cannot take judicial notice of foreign laws, foreign judgments, and other
foreign public documents. Instead of judicial notice, the proper way to present foreign
laws, foreign judgments, and other foreign public documents as evidence is found under
Sections 24 and 25 of Rule 132. That said, the courts cannot take judicial notice of, say,
the criminal laws of Australia or a divorce decree issued by a German court.
Admissions

Legal Basis

Revised Rules on Evidence, Rule 130, Section 27. Admission of a party. - The act,
declaration or omission of a party as to a relevant fact may be given in evidence against
him or her.

Revised Rules on Evidence, Rule 130, Section 34. Confession. — The declaration
of an accused acknowledging his or her guilt of the offense charged, or of any offense
necessarily included therein, may be given in evidence against him or her.

Admission is a clear, categorical, and voluntary declaration on a matter of fact that is

adverse to the interest of the declarant. Otherwise put, for a declaration to be considered
an admission: (1) it must be on a matter of fact; (2) it is adverse or contrary to the interests
of the declarant; 3) it only has one meaning; and (4) it was not forced, threatened, or
intimidated out of the declarant.

During her direct testimony in a case for Estafa, the accused declares, "Alam ko po ang
code sa combination lock sa tindahan ni Aling Fe." This declaration is an admission
because: (1) it is about the fact of knowing the code to the combination lock; (2) knowing
the code to the combination lock is adverse to the accused's interest of not being
implicated in the crime; (3) it can only mean that the accused knows the code to the
combination lock; and (4) the accused was not forced, threatened, or intimidated for it.
Because of this admission, the accused cannot later claim that she could not open the lock
because she does not know the code.

The example above is a judicial admission. Judicial admissions made by parties in the
course of the trial, whether oral or written, in the same case, do not require further
evidence to prove them. They are legally binding on the declarant, and the declarant may
not present contrary evidence to disprove the admission. Written judicial admissions can
be made in pleadings (e.g., complaint, answer, reply, etc.), judicial affidavits, and
motions. Oral judicial admissions can be made during testimonial examinations.

Another example of an admission made in the course of judicial proceedings is an

admission made by a party during the pre-trial stage. During the pre-trial, the court will
ask the parties to identify the allegations of the other party that they would like to admit.
The set of admissions will be the stipulated facts of the case, and the parties do not have
to present evidence during the trial as to these matters. The trial will then be limited to
the presentation of evidence on the facts in issue or the allegations of the parties that are
denied by the opposing parties.

Suppose the prosecution alleges that Regina Corona, the person accused of stealing the
pearl tiara from the jewelry store, visited the store on the morning of the theft. During the
pre-trial conference, the defense does not deny Regina's presence at the store in the
morning when the tiara was stolen and admits this allegation as fact. Hence, Regina's
presence at the store is an admission. On the other hand, the defense denies the
prosecution's allegation that Regina did not own the tiara and alleges that Regina issued
a check to the store owner for the value of the tiara. If the prosecution agrees that Regina
issued a check for the tiara, then this too is an admission.

The effect of a judicial admission is that the declarant is barred from presenting evidence
contrary to the fact that they admitted. However, if the admission was made through a
palpable or obvious mistake, or the imputed admission, was not, in fact, made, then the
admission can be contradicted with evidence.
In the example above, if Regina admits her presence at the store on the morning of theft
because of her mistaken belief that the date in question falls on 5 June 2019, Regina can
challenge the admission with contradictory evidence. If the date in question happens to
be 5 June 2020 instead, Regina can present evidence that she was confined in an isolation
facility for having contracted COVID-19 on said date.

In Chapter V, we will discuss the rules on res inter alios acta, which refer to admissions
made by third parties. In general, admissions by third parties against the interest of
another cannot prejudice the latter. Therefore, the need to present evidence to prove the
matter of fact admitted by a third party remains. However, in certain instances, the court
recognizes exceptions where admissions by third parties also have the effect of legally
binding the person against whom the admission is made.

Confessions

From Rule 130, Section 34, a confession has the following attributes:

1. declaration of guilt;
2. guilt must pertain to the offense charged, or to any offense necessarily included
therein; and
3.declaration must be made by the accused.

A confession is a specific admission as to the guilt of an accused. Accused persons make a

declaration of guilt when they positively and expressly acknowledge that they performed
the acts or omissions that they are charged for. The declaration must be done orally or in
writing (expressed) and cannot be implied. The acts or omissions that the accused persons
say they did may constitute the offense itself or may constitute another offense that is
included in the offense charged.

Offer of Compromise in Criminal Cases as Admission of Guilt

In criminal cases, an offer of compromise by the accused may be received in evidence as

an implied admission of guilt.

Example: If the complainant testified that during the pendency of the rape case, the
accused talked to her for the purpose of settling the case purposely to escape prosecution
and possible conviction for the crime charged and was not disputed, such act of the
accused is considered as an implied admission of guilt.

There are only two exceptions where compromise is not admissible as an implied
admission of guilt in criminal cases: 1. in quasi-offenses or acts defined and penalized
under Article 365 of the Revised Penal Code (i.e., Reckless Imprudence and Simple
Imprudence or Negligence); and 2. those allowed by law to be compromised. Their usual
examples are found in the Revised Penal Code, particularly Art. 266-D of the Revised
Penal Code (the compromise that the victim agreed to marry and indeed got married to
the accused in a rape case) or if a compromise was made before the filing of the criminal
complaint.

Examples: An act of pleading for forgiveness may be analogous to an attempt to

compromise and may be received as an implied admission of guilt," and an offer to pay
for the misappropriated jewelry in an estafa case is considered as an implied admission
of guilt.

No admission of guilt in the following compromises:

Under the 2019 Rules on Evidence, any statement made in the course of the plea
bargaining with the prosecution, which does not result in a plea of guilty or which results
in a plea of guilty later withdrawn, is not admissible.
During the pre-trial proceedings, proposals or counter-proposals "to buy peace" or to put
an end to the troubles of litigation, and to promote settlement of disputes are allowed as
a matter of public policy. The act of [accused] in the middle of pre-trial is not an admission
of any liability and therefore, should not be considered admissible evidence against him.

In connection with the foregoing jurisprudence, evidence of conduct or statements made

in compromise negotiations are not admissible unless if such evidence will be offered for
another purpose such as proving bias or prejudice of a witness, disputing undue delay, or
was utilized as an effort to obstruct a criminal investigation or prosecution.

A plea of guilty later withdrawn or unaccepted offer of a plea of guilty to a lesser offense
is not admissible against the accused. If the plea of guilty is later withdrawn, then it is as
if it was not made, and there is no admission of guilt. If the accused does not accept the
offer to plead guilty for a lesser offense, then there is also no admission of guilt that can
be admitted into evidence against the accused. The reason for the withdrawal or
unacceptance is deemed to be the accused's informed decision as to the effects of pleading
guilt.

An offer to pay or the payment of medical, hospital, or other expenses occasioned by an

injury is also not an implied admission of guilt. But an act of bringing or helping the victim
to the hospital does not by itself prove innocence to the crime, for the accused could have
been motivated by feelings other than a genuine desire for the victim to recover.

However, if a compromise is made before the case is filed, it may be allowed just like in
criminal cases involving taxes where it provides that "all criminal violations may be
compromised unless the criminal case has already been filed in court, or if it involves
fraud.

GROUP 2: PRESUMPTIONS AND ADMISSIBILITY OF EVIDENCE

Presumptions

While judicial notice pertains to the court's acceptance of facts absent evidence, legal
presumptions pertain to the conclusions made by the courts based upon a set of proven
facts and the application of logical reasoning.

Revised Rules on Evidence, Rule 131, Section 2. Conclusive Presumptions. — The

following are instances of conclusive presumptions:

(a) Whenever a party has, by his or her own declaration, act, or omission, intentionally
and deliberately led to another to believe a particular thing true, and to act upon such
belief, he or she cannot, in any litigation arising out of such declaration, act, or omission,
be permitted to falsify it; and

(b) The tenant is not permitted to deny the title of his or her landlord at the time of
commencement of the relation of landlord and tenant between them.

Revised Rules on Evidence, Rule 131, Section 3. Disputable Presumptions. — The

following presumptions are satisfactory if uncontradicted but may be contradicted and
overcome by other evidence:

a) That a person is innocent of crime or wrong;

b) That an unlawful act was done with an unlawful intent;
c) That a person intends the ordinary consequences of his or her voluntary act;
d) That a person takes ordinary care of his or her concerns;
e) That evidence willfully suppressed would be adverse if produced;
f) That money paid by one to another was due to the latter;
g) That a thing delivered by one to another belonged to the latter;
h) That an obligation delivered up to the debtor has been paid;
i) That prior rents or installments had been paid when a receipt for the later one is
produced;
j) That a person found in possession of a thing taken in the doing of a recent wrongful
act is the taker and the doer of the whole act; otherwise, that things which a person
possess, or exercises acts of ownership over, are owned by him or her;
k) That a person in possession of an order on himself or herself for the payment of
the money, or the delivery of anything, has paid the money or delivered the thing
accordingly;
l) That a person in a public office was regularly appointed or elected to it;
m) That official duty has been regularly performed;
n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was
acting the lawful exercise of jurisdiction;
o) That all the matters within an issue raised in a case were laid before the court and
passed upon by it; and in like manner that all matters within an issue raised in a
dispute submitted for arbitration were laid before the arbitrators and passed upon
by them;
p) That private transactions have been fair and regular;
q) That the ordinary course of business has been followed;
r) That there was a sufficient consideration for a contract;
s) That a negotiable instrument was given or indorsed for a sufficient consideration;
t) That an indorsement of a negotiable instrument was made before the instrument
was overdue and at the place where the instrument is dated;
u) That the writing is truly dated;
v) That a letter duly directed and mailed was received in the regular course of the
mail;
w) That after an absence of seven years, it being unknown whether or not the absentee
still lives, he or she is considered dead for all purposes, except for those of
succession;

The absentee shall not be considered dead for the purpose of opening his or her
succession till after an absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in order that his
succession may be opened.

The following shall be considered dead for all purposes, including the division of
the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aircraft with is
missing, who has not been heard of for four years since the loss of the vessel or
aircraft;
(2) A member of the armed forces who has taken part in armed hostilities, and has
been missing for four years;
(3) A person who has been in danger of death under other circumstances and
whose existence has not been known for four years;
(4) If a married person has been absent for four consecutive years, the spouse
present may contract a subsequent marriage if he or she has well-founded belief
that the absent spouse is already dead. In case of disappearance, where there is a
danger of death, the circumstances hereinabove provided, an absence of only two
years shall be sufficient for the purpose of contracting a subsequent marriage.
However, in any case, before marrying again, the spouse present must institute
summary proceedings as provided in the Family Code and in the rules for
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.

x) That acquiescence resulted from a belief that the thing acquiesced in was
conformable to the law or fact;
y) That things have happened according to the ordinary course of nature and ordinary
nature habits of life;
z) That persons acting as copartners have entered into a contract of co-partnership;
aa) That a man and woman deporting themselves as husband and wife have entered
into a lawful contract of marriage;
bb)That property acquired by a man and a woman who are capacitated to marry each
other and under void marriage, has been obtained by their joint efforts, work, or
industry;
cc) That in cases of cohabitation by a man and a woman who are not capacitated to
marry each other and who have acquired properly through their actual joint
contribution of money, property, or industry, such contributions and their
corresponding shares including joint deposits of money and evidences of credit are
equal;
dd) That if the marriage is terminated and the mother contracted another marriage
within three hundred days after such termination of the former marriage, these
rules shall govern in the absence of proof to the contrary:

(1) child born before one hundred eighty days after the solemnization of the
subsequent marriage is considered to have been conceived during such marriage,
even though it be born within the three hundred days after the termination of the
former marriage; and
(2) A child born after one hundred eighty days following the celebration of the
subsequent marriage is considered to have been conceived during such marriage,
even though it be born within the three hundred days after the termination of the
former marriage;

ee) That a thing once proved to exist continues as long as is usual with things of that
nature;
ff) That the law has been obeyed;
gg) That a printed or published book, purporting to be printed or published by public
authority, was so printed or published;
hh) That a printed or published book, purporting to contain reports of cases adjudged
in tribunals of the country where the book is published, contains correct reports of
such cases;
ii) That a trustee or other person whose duty it was to convey real property to a
particular person has actually conveyed it to him or her when such presumption is
necessary to perfect the title of such person or his or her successor in interest;
jj) That except for purposes of succession, when two persons perish in the same
calamity, such as wreck, battle, or conflagration, and it is not shown who died first,
and there are no particular circumstances from which it can be inferred, the
survivorship is determined from the probabilities resulting from the strength and
the age of the sexes, according to the following rules:

1. If both were under the age of fifteen years, the older is deemed to have survived;

2. If both were above the age sixty, the younger is deemed to have survived;

3. If one is under fifteen and the other above sixty, the former is deemed to have
survived;

4. If both be over fifteen and under sixty and the sex be different, the male is
deemed to have survived, if the sex be the same, the older;

5. If one be under fifteen or over sixty, and the other between those ages, the latter
is deemed to have survived.

kk) That if there is a doubt, as between two or more persons who are called to succeed
each other, as to which of them died first, whoever alleges the death of one prior to
 the other, shall prove the same, in the absence of proof, they shall be considered to
have died at the same time.

Revised Rules on Evidence, Rule 131, Section 4. No presumption of legitimacy or

illegitimacy. - There is no presumption of legitimacy or illegitimacy of a child born after
three hundred days following the dissolution of the marriage or the separation of the
spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his or
her allegation.

Revised Rules on Evidence, Rule 131, Section 5. Presumptions in civil actions and
proceedings.- In all civil actions and proceedings not otherwise provided for by the law or
these Rules, a presumption imposes on the party against whom it is directed the burden
of going forward with evidence to rebut or meet the presumption.

If presumptions are inconsistent, the presumption that is founded upon weightier

considerations of policy shall apply. If considerations of policy are of equal weight, neither
presumption applies.

Revised Rules on Evidence, Rule 131, Section 6. Presumption against an accused

in criminal cases. - If a presumed fact that establishes guilt, is an element of the offense
charged, or negates a defense, the existence of the basic fact must be proved beyond
reasonable doubt and the presumed fact follows from the basic fact beyond reasonable
doubt.

Presumptions are inferences that are thought to be true because the probability that they
are true is high. These inferences are either conclusive or disputable, depending on
whether the Rules allow the presentation of contrary evidence.

Conclusive presumptions (presumption juris et de jure) are inferences that the courts
treat as facts. These inferences do not need to be proved. In effect, this means that the
opposing party cannot present any evidence to overturn the conclusion. There are only
two conclusive presumptions under the Rules on Evidence. The first pertains to what is
known as estoppel, or the prohibition upon a party who deliberately misleads another
person from falsifying the other person's belief in litigation that later arises. The second
is concerned with the prohibition upon the tenant from denying the landowner's title at
the time of the commencement of the lease.

Under the first kind, a person is considered in estoppel if by his or her conduct,
representations, admissions, or silence when he ought to speak out, whether intentionally
or through culpable negligence, "causes another to believe certain facts to exist and such
other rightfully relies and acts on such belief, as a consequence of which he would be
prejudiced if the former is permitted to deny the existence of such facts.

Under estoppel by deed, a party to a deed and his or her privies* are precluded from
denying any material fact stated in the deed as against the other party and his or her
privies.

Under estoppel by laches, an equitable estoppel, a person who has failed or neglected to
assert a right for an unreasonable and unexplained length of time is presumed to have
abandoned or otherwise declined to assert such right and cannot later on seek to enforce
the same, to the prejudice of the other party, who has no notice or knowledge that the
former would assert such rights and whose condition has so changed that the latter
cannot, without injury or prejudice, be restored to his former state.

Examples:

1. Stan Rivero and Katie Alvarez were happily married for three years until Stan filed for
an annulment. The court granted the annulment, and the two went on with their separate
lives. Katie met James Saavedra, and the two started dating. Stan, driven by jealousy,
began sending Katie emails, threatening to hurt James. Katie filed a case against Stan for
psychological violence under Republic Act No. 9262 or the Anti Violence Against Women
and their Children Act, an element of which is the intimate relationship between the
complaining witness and the accused. In the case for violation of RA 9262, Stan is
estopped from denying his previous relationship with Katie, especially because he had
previously represented in court that they were married when he sought an annulment.
The conclusive presumption is that Stan and Katie were in an intimate relationship.

2. Rosie sued her landlord Ponce for the return of the monthly rentals she paid for the
rice fields she was tilling. Rosie alleged Ponce is not the true owner of the land, the true
owner being the government. Rosie added that Ponce is the illegitimate child of the dead
owner, and therefore, he has no rights over the land.

Rosie is not permitted to deny the title of Ponce at the time of the commencement of the
relation of landlord and tenant between them. Rosie's admission that she made monthly
rental payments to Ponce is a conclusive presumption that Rosie recognized Ponce's
ownership of the rice fields.

Disputable presumptions (presumption juris tantum) are inferences that the courts use
as fact until such a time when it is proved false. This means that the courts allow the
opposing party to dispute the resulting conclusion by introducing evidence.

The following presumptions are satisfactory, if uncontradicted, but may be contradicted

and overcome by other evidence:

Presumption of Innocence

All persons are presumed innocent until their guilt is proved beyond reasonable doubt.
Therefore, the burden to prove that an accused is guilty rests on the prosecution. Before
a judgment on the merits of the case which finds that the accused indeed committed the
acts or omissions he or she was charged with, the innocence of the accused is upheld.

Presumption of Unlawful Intent

Under our criminal laws, this presumption means that when an accused commits acts
that are prohibited by law or omits acts that are required by law, the accused does so with
the unlawful intent necessary for the commission or omission. Otherwise put, the mens
rea (intent) is presumed from the actus rea (act).

When it has been proven that the offender committed the unlawful acts alleged, it is
properly presumed that they were committed with full knowledge and with criminal
intent, and it is incumbent upon the accused to rebut such presumption. When the law
plainly forbids an act to be done, and it is done by a person, the law implies the guilty
intent, although the offender was honestly mistaken as to the meaning of the law which
he or she had violated. If the act is criminal, then criminal intent is presumed. The accused
must present evidence in his or her defense that he or she has no criminal intent.
Otherwise, the presumption stands.

Presumption of Willful Suppression of Evidence

The failure to produce a piece of evidence gives rise to the risk of a presumption of willful
suppression of evidence, which may lead to the conclusion that the evidence will be
adverse to the interest of the party who is suppressing it. For instance, a poseur buyer is
an indispensable witness in a buy-bust drug case when the arresting officers have no
personal knowledge of the fact that an illegal drug transaction transpired between the
poseur buyer and the accused. This may be the case if: (1) there is no person other than
the poseur buyer who witnessed the drug transaction; (2) there is no explanation for the
nonappearance of the poseur-buyer and reliable eyewitnesses who could testify in his
place; (3) the witnesses other than the poseur-buyer did not hear the conversation
between the pusher and poseur-buyer; and (4) the accused vehemently denies selling any
prohibited drugs coupled with the inconsistent testimonies of the arresting officers or
coupled with the possibility that there exist reasons to believe that the arresting officers
had motives to testify falsely against the accused. If the poseur buyer is not presented as
a witness, their nonappearance will give rise to the presumption of willful suppression of
evidence against the prosecution.

However, this presumption will not apply in the following cases:

1. The evidence is at the disposal of both parties (or either party can produce the
evidence);
2. The suppression is not willful;
3. The evidence is merely corroborative and cumulative; and
4. The suppression is an exercise of privilege.

Presumption that Possessor of the Thing is the Taker of the Thing

This presumption applies to cases where such possession of thing cannot be properly
explained or that the offered explanation is rendered unbelievable in view of an existing
evidence inconsistent with the explanation.

Presumption of Regularity in the Performance of Official Duties

Presumption of regularity in the performance of official duty is made in the context of an

existing rule of law or statute authorizing the performance of an act or duty or prescribing
a procedure in the performance thereof. This means that when there are no irregularities
in the performance of official duty, officers are presumed to have performed the duty
according to the applicable rules. and regulations. Otherwise, when there is a deviation
from the standard procedure, the presumption applies. For instance, in drug cases, the
presumption of regularity will not apply if the buy-bust team blatantly disregarded the
established procedures under Section 21 of RA 9165.

It is also important to note that the presumption of regularity in the performance of duty
cannot overcome the stronger presumption of innocence in favor of the accused.

Presumption of Death

If a person has been missing for a number of years and his or her whereabouts are
unknown, and despite earnest efforts to locate the missing person, the same is futile, then
the person is presumed dead. This presumption under the 2019 Rules on Evidence was
taken from Articles 390 and 391 of the New Civil Code, for which there is no need to go to
court to declare a person presumptively dead.

But if the presumption is for the purpose of remarriage, a court declaration of

presumptive death of the spouse who has been missing for four or seven years, as the case
may be, is needed.

Presumption in Criminal Cases

In criminal cases, the guilt of the accused may be established by showing that a presumed
fact is an element of an offense or it negates a defense and proving a basic fact beyond
reasonable doubt.

An accused is guilty of Estafa under Article 315(b) of the Revised Penal Code if the accused
does not return the personal property that he or she received, under the obligation that
he or she will return it. The failure to return the personal property is deemed as the
misappropriation or conversion of the personal property, which is an element of the
offense.

It is the presumed fact, that along with proof beyond reasonable doubt that a demand for
the return of the personal property has been made (basic fact), will be sufficient to
establish the guilt of the accused.

The following are other presumptions applicable to criminal laws:

1. Presumption of malice in libel;

2.Presumption of misappropriation of public funds or property in malversation;
3.Presumption in regard to the imposition of accessory penalties;
4. Presumption of Innocence under the Constitution;
5. The public display of any form of child pornography within their premises is a
conclusive presumption of the knowledge of the mall owners/operators and
owners or lessors of other business establishments of the violation of this Act: x x
x [A] disputable presumption of knowledge by mall owners/operators and owners
or lessors of other business establishments is established if, through the exercise
of ordinary diligence, mall owners/operators and owners or lessors of other
business establishments should know or reasonably know that a violation of this
Act is being committed in their premises;
6. Presumption of Minority;
7. Presumption relating to Electronic Signatures;
8. Presumption and prima facie evidence of intent to defraud by possession, control,
or custody of access devices;
9. Presumption of Fencing;
10. Presumption of Cattle-Rustling;
11. Presumption of Paternity in the Evaluation of DNA Testing Results;
12. Presumption of competency of a child to be a witness, and
13. Presumption of physical overt act manifesting resistance against the act of rape in
any degree from the offended party, or where the offended party is so situated as to
render her or him incapable of giving valid consent in rape cases.

Note that in addition to the categories subject to judicial notice and a few other exceptions
identified by the Rules, the presumptions comprise a finite set of possible factual
conclusions. Therefore, outside of the categories for judicial notice, judicial admissions,
the exhaustive list of presumptions under statutes, Rules, and jurisprudence, and other
exceptions explicitly made by the Rules, all other matters of fact must be alleged and
proved with evidence.

Admissibility of Evidence

Admissibility

Legal Basis

Revised Rules on Evidence, Rule 128, Section 3. Admissibility of evidence. —

Evidence is admissible when it is relevant to the issue and is not excluded by the
Constitution, the law or these rules.

Revised Rules on Evidence, Rule 128, Section 4. Relevancy; collateral matters. -

Evidence must have such a relation to the fact in issue as to induce belief in its existence
or non-existence.

Evidence on collateral matters shall not be allowed, except when it tends in any
reasonable degree to establish the probability or improbability of the fact in issue.
Not all evidence will be allowed by the court to prove the allegations or denials of the
parties to a case. To be allowed, the evidence must satisfy the two criteria of relevance and
competence. The courts look into the characteristics of the evidence (e.g., source,
connection to the fact in issue) and check if these characteristics satisfy the criteria for
admissibility. If these do, then the court admits the evidence into the case record and will
consider it when making the judgment. Otherwise, if these characteristics are not relevant
or not competent, then the court excludes the evidence and will disregard it in
determining the ultimate facts and deciding the case.

Relevance

Under Rule 128, Section 4, evidence is relevant if it has "a relation to the fact in issue as
to induce belief in its existence or non-existence." From this rule, we gather that there are
two components of relevance. First, relevant evidence has a relation to the fact in issue.

If there is a relationship between the evidence and the fact in issue, then the evidence is
material. Second, relevant evidence can lead us to believe in the existence or non-
existence of the fact in issue. If the evidence supports our belief that the alleged fact exists,
then the evidence has probative value.

Example:

Shayla Macaraig was charged for Estafa. In the Information, it was alleged that she offered
promo tours to Palawan, received money for the tours, but did not issue the hotel
reservation and the flight tickets. During the trial, the prosecution offered the bank
deposit slip for the P50,000 that the complaining witness deposited to Shayla's bank
account, and Shayla's social media photo of a new watch which costs P50,000 that she
bought a day after the deposit was made.

Are the two pieces of evidence relevant?

The bank deposit slip is relevant evidence. The offended party's inducement to part with
money because of the fraud is one element of Estafa. Thus, the fact in issue is whether the
offended party was induced to part with the P50,000. The bank deposit slip is directly
related to the fact of parting with the P50,000 in favor of Shayla, and is therefore material.

It also leads us to believe that the transfer of money to Shayla was indeed completed, and
it thus has probative value. Since the bank deposit slip is material and has probative value,
it is relevant evidence.

The social media photo, on the other hand, is not relevant evidence. It is not directly
related to any element of the crime of Estafa and is thus immaterial. It also does not lead
us to believe in the existence of any fact in issue. It may lead us to believe that Shayla
bought a new watch for P50,000, but the purchase of the watch is not a fact in issue.

Competence

In addition to relevance, admissible evidence must also be competent. Under Rule 128,
Section 3, evidence is competent if it "is not excluded by the law or these rules." If a piece
of evidence is disqualified by the law or the Rules of Court, then it is not competent and
will be inadmissible.

An example of evidence that is excluded by law, and is therefore inadmissible, is evidence

obtained unlawfully. Under the law, even relevant evidence, if it was obtained in violation
of the rights of the accused, should not be admitted by the courts. This is called the
exclusionary rule because the courts exclude the evidence from admission into the records
of the case and from the factual bases of the judgment.
The fruit of the poisonous tree doctrine is an application of the exclusionary
rule.Under this doctrine, if the tree (primary evidence) was obtained unlawfully, then its
fruit (derivative evidence) is also considered to have been obtained unlawfully. The tree
and the fruit are both inadmissible in evidence.

Example:

Jimmy Javier was unlawfully arrested. During the arrest of Jimmy, the police officers also
seized an unregistered firearm which they found on his person. In court, the prosecution
offered the unregistered firearm as evidence. Should the court admit the unregistered
firearm as evidence?

Applying the fruit of the poisonous tree doctrine, the court should exclude the
unregistered firearm. Since Jimmy was unlawfully arrested (the poisonous tree), then the
unregistered firearm (the fruit) is also considered unlawfully seized. The court should
therefore disallow the unregistered firearm from being entered into evidence.

Also excluded is evidence obtained in violation of the plain view doctrine. Under this
doctrine, when a law enforcement officer lawfully intrudes upon a particular area and
inadvertently discovers evidence of a crime, then the law enforcement officer may lawfully
seize the evidence. However, when the intrusion is unlawful or when the discovery of the
evidence is not in plain view, then the exclusionary rule applies. The items seized in
violation of the plain view doctrine cannot be admitted into evidence because their seizure
violates the constitutional guarantee against unlawful searches and seizures.

Example:

Police officers William Rodriguez and Scott Sacalan enforced a search warrant for
gambling equipment in the resthouse of a suspected gambling lord who was being charged
for maintaining a gambling den. After completing the search, the officers made an
inventory of the items seized. In addition to the thirty video karera machines in the open
area of the garage which they seized, William included the fifteen kilos of crystal meth,
which he found on the center table in the living room. Scott, on the other hand, included
three assault rifles which he found inside a closet in the master bedroom.

Of the three types of evidence seized, which will be considered competent evidence?

The video karera machines were specified in the search warrant and found in the open
area of the garage. These machines were lawfully obtained and are therefore competent
evidence.

The crystal meth, which William found on top of the center table in the living room, was
discovered in plain view and is also competent evidence.

The assault rifles, however, were found inside a closet and were thus not in plain view.
Because the discovery of the assault rifles was deliberate, Scott having opened every
cabinet in the house before finding them, the assault rifles will not be considered
competent evidence and will be excluded.

Multiple Admissibility of Evidence

Evidence may be admissible for different purposes. Here are some examples:

1. While defending himself, Gino killed Jay. To prove self-defense, Gino testified that
he and Jay had previously had a physical altercation. The prosecution can also use
the same testimony to corroborate any evidence that shows Gino wanting to take
revenge on Jay.
 2. In a case for illegal possession of firearms, the prosecution presented as evidence
the firearm seized from Candy to prove her illegal possession of it. Candy can use
the very same firearm, along with her Firearms License and License to Carry, to
prove her legitimate ownership and possession of the gun.

Conditional Admissibility of Evidence

Evidence may appear to be irrelevant or even incompetent at the time it was offered.
Therefore, to be allowed to present the evidence despite its apparent irrelevance or
incompetence, the party presenting it may respectfully ask the court to admit the evidence
on the condition that its relevance or competence will be proved at a later time, usually
with the aid of supporting evidence. If the supporting evidence convinces the court of the
relevance and competence of the evidence conditionally admitted, then the latter can be
fully admitted.

Curative Admissibility of Evidence

Sometimes, the court admits otherwise inadmissible evidence because no timely

objection was raised against it. Evidence must be objected to when it is formally offered
to the court. In instances where a timely objection is not made, the failure of the opposing
party to object cures the irrelevance or incompetence of the evidence offered.

In a trial for rape, the testimony of a witness for the defense was offered for the purpose
of proving that the victim consented to the sexual intercourse. One part of the direct
examination goes:

Counsel: Would you say she was wearing revealing clothes on the night of the alleged
rape?
Witness: Yes. She wore a spaghetti strap and mini-shorts.

The question regarding the victim's clothing and the corresponding answer of the witness
are irrelevant to proving that the victim consented to the sexual intercourse. Wearing a
spaghetti strap and mini-shorts does not indicate that the victim willingly and voluntarily
engaged in the sexual act with the accused. Hence, the prosecution should have objected
when the counsel for the defense asked the question on the ground that any answer to it
would be irrelevant for the purpose of proving that the intercourse was consensual.
Because the prosecution did not timely object, and the witness had already answered, the
otherwise inadmissible testimony has been entered into the records of the case and
admitted as evidence.

The same rule applies to documentary evidence. Documentary evidence is formally

offered after the examination of witnesses. If a party fails to object to the formal offer of
the documentary evidence, the court may admit the objectionable document and consider
it in the resolution of the case.

Under the Original Document Rule, photocopies of documents are incompetent as

evidence because they are not originals. If photocopies are formally offered in evidence,
and the opposing party does not interpose an objection to the formal offer, then the
photocopies may be admitted in evidence. As part of the records of the case, the court will
consider the photocopies for their evidentiary value.
GROUP 3: PRESENTATION OF EVIDENCE AND JUDICIAL AFFIDAVIT
RULE

Presentation of Evidence

Offer

Legal Basis

Revised Rules on Evidence, Rule 132 (C), Section 34. Offer of evidence. - The
court shall consider no evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.

Revised Rules on Evidence, Rule 132 (C), Section 35. When to make offer. — All
evidence must be offered orally.

The offer of the testimony of a witness in evidence must be made at the time the witness
is called to testify.

The offer of documentary and object evidence shall be made after the presentation of a
party's testimonial evidence.

Revised Rules on Evidence, Rule 132 (C), Section 40. Tender of excluded
evidence. — If documents or things offered in evidence are excluded by the court, the
offeror may have the same attached or made part of the record. If the evidence excluded
is oral, the offeror may state for the record the name and other personal circumstances of
the witness and the substance of the proposed testimony.

When making its decision on a case, the court considers the objects, documents and
testimonies that are admitted into evidence. For the party presenting the evidence, having
the evidence admitted by the court begins with making the formal offer of evidence. To
make the formal offer of evidence, counsel will identify the object, document or testimony
to be offered. Counsel will then state the purpose for the evidence or identify what fact in
issue the evidence will prove or disprove. This is done orally before the trial judge.

In a case of robbery of a bank, counsel may formally offer the testimony of the bank
personnel for the purpose of proving that money was forcefully stolen from the bank's
vault by armed persons. In the same case, counsel may also formally offer the CCTV
footage from the bank's security system as documentary evidence for the purpose of
identifying the persons who committed the robbery.
For testimonial evidence, the formal offer is made before the witnesses give their
testimony in open court. For object or documentary evidence, the formal offer is made
after the presentation of testimonial evidence because witnesses must identify and
authenticate the object or documentary evidence during their testimony before these are
formally offered. If counsel fails to make a formal offer of the evidence, then the evidence
will be excluded.

Obiection

Legal Basis

Revised Rules on Evidence, Rule 132 (C), Section 36. Objection. - Objection to
offer of evidence must be made orally immediately after the offer is made.

Objection to the testimony of a witness for lack of a formal offer must be made as soon as
the witness begins to testify. Objection to a question propounded in the course of the oral
examination of a witness must be made as soon as the grounds therefor become
reasonably transparent.
The grounds for the objections must be specified.

Revised Rules on Evidence, Rule 132 (C), Section 37. When repetition of objection
unnecessary.
— When it becomes reasonably apparent in the course of the examination of a witness
that the questions being propounded are of the same class as to which objection has been
made, whether such objection was sustained or overruled, it shall not be necessary to
repeat the objection, it being sufficient for the adverse party to record his or her
continuing objection to such class of
questions.

Revised Rules on Evidence, Rule 132 (C), Section 39. Striking out of answer. —
Should a witness answer the question before the adverse party had the opportunity to
voice fully its objection to the same, or where a question is not objectionable, but the
answer is not responsive, or where a witness testifies without a question being posed or
testifies beyond limits set by the court, or when the witness does a narration instead of
answering the question, and such objection is found to be meritorious, the court shall
sustain the objection and order such answer, testimony or narration to be stricken off the
record.

On proper motion, the court may also order the striking out of answers which are
incompetent, irrelevant, or otherwise improper.

The role of counsel when contrary evidence is being offered and presented is to be alert
for evidence that may be irrelevant or incompetent. As soon as the evidence appears to be
irrelevant or incompetent, counsel must make an objection. Evidence can appear to be
irrelevant or incompetent as early as when the formal offer is made or during the course
of the testimony of the witness. When counsel makes the objection before the court,
counsel must specify that the ground for the objection, which may be the irrelevance or
incompetence of evidence.

Example:

Recall the example on Estafa in the previous lesson. If the defendant's counsel offers the
social media photo of Shayla Macaraig for the purpose of proving that Shayla had money
and therefore did not need to swindle anyone, the prosecution must object to the offer on
the ground of irrelevance. From the purpose stated by counsel (to prove that Shayla had
money), it is apparent that the social media photo is not directly related to any fact in
issue (whether Shayla induced the offended party to part with the P50,000, and whether
the offended party indeed deposited the P50,000 to Shayla's bank account). After all, even
if the defense proves that Shayla does have money, it does not negate the allegation that
Shayla committed Estafa.

If the court allows the testimony of a witness, and in the course of the testimony, the
counsel asks a series of questions that causes the witness to respond with irrelevant or
incompetent answers, the opposing counsel may raise a continuing objection to the series
of questions and the corresponding answers. Even if the court overrules the first
objection, the continuing objection will serve as an objection to each and every question
that may belong to the same class.

Similarly, if the witness gives answers that are irrelevant or incompetent, counsel may
move that the answer of the witness be stricken off the record. If the court grants the
motion to strike, the answer of the witness will be removed from the transcript of the
testimony.
Example:

Recall the example of the search and seizure in the previous lesson. In that example, the
accused was subsequently charged for Illegal Gambling, Illegal Possession of Dangerous
Drugs, and Illegal Possession of Firearms. In the case for Illegal Possession of Firearms,
the prosecution called police officer Scott Sacdalan to the stand for the purpose of proving
that he found the assault rifles when he opened the closet in the house of the accused. The
defense objected to the testimony on the ground of incompetence because the testimony
is a fruit of the poisonous tree, as it follows an illegal search and seizure that violated the
right of the accused. The court, however, overruled the objection and allowed the
testimony.

During the testimony, the prosecution asked a series of questions related to the search of
the accused's residence and the subsequent seizure of the video karera machines, the
crystal meth, and the assault rifles. On the ground of incompetence, the defense can: (1)
raise a continuing objection against the series of questions; and (2) move that Scott's
answers be stricken off the record.

Ruling

Legal Basis

Revised Rules on Evidence, Rule 132 (C), Section 38. Ruling. — The ruling of the
court must be given immediately after the objection is made, unless the court desires to
take a reasonable time to inform itself on the question presented; but the ruling shall
always be made during the trial and at such time as will give the party against whom it is
made an opportunity to meet the situation presented by the ruling.

The reason for sustaining or overruling an objection need not be stated. However, if the
objection is based on two or more grounds, a ruling sustaining the objection on one or
some of them must specify the ground or grounds relied upon.

After the opposing party raises the objection, the court must either overrule or sustain the
objection. When the court overrules the objection, the court finds that the objection is not
justified, and is therefore allowing the offer of the evidence or the class of questions
propounded to the witness. On the other hand, when the court sustains the objection, the
court finds that the objection is justified by the ground or grounds specified by the
opposing counsel. If there is just one ground for sustaining the objection, the ruling need
not specify this ground. If there are several grounds for the objection, the court must
specify on which ground it is disallowing or excluding the evidence or the class of
questions propounded to the witness.

Generally, the court makes the ruling immediately after the objection is raised. However,
the court, in the exercise of its discretion, may also take a reasonable amount of time to
study the offer of and the objection to the evidence. In either case, the ruling of the court
is made during the trial.

Presentation of Witnesses

Legal Basis

Revised Rules on Evidence, Rule 132 (A), Section 1. Examination to be done in

open court. — The examination of witnesses presented in a trial or hearing shall be done
in open court, and under oath or affirmation. Unless the witness is incapacitated to speak,
or the questions calls for a different mode of answer, the answers of the witness shall be
given orally.
Revised Rules on Evidence, Rule 132 (A), Section 2. Proceedings to be recorded.
— The entire proceedings of a trial or hearing, including the questions propounded to a
witness and his or her answers thereto, the statements made by the judge or any of the
parties, counsel, or witnesses with reference to the case, shall be recorded by means of
shorthand or stenotype or by other means of recording found suitable by the court.

A transcript of the record of the proceedings made by the official stenographer,

stenotypist or recorder and certified as correct by him or her, shall be deemed prima facie
a correct statement of such proceedings.

Swearing In

After the court has allowed the testimony of the witness, the witness will then be sworn
in. This means that the witness will take an oath or affirmation in open court. An oath is
a promise to tell the truth before a supreme being and is thus viewed as religious, while
an affirmation is a promise to tell the truth without mention of any supreme being and is
thus viewed as non-religious. These are some variations of how the oath or affirmation is
taken or administered:

Oath

"I swear by Almighty God that the evidence I shall give will be the truth, the whole truth
and nothing but the truth."

"I promise to tell the truth, the whole truth, and nothing but the truth. So help me, God."
"Ako, si (name of witness), ay sumusumpa na magsasabi ng totoo at pawang
Katotohanan lamang sa hukumang ito. Kasiyahan nawa ako ng Diyos."

Affirmation
"Do you swear to tell the truth, the whole truth, and nothing but the truth?"

"Nangangako ka ba na ang lahat ng yong mga sasabihin ay pawang katotohanan lamang?"

"Sumusumpa ka ba ng magsasabi ka ng buong katotohanan at pawang katotohanan

lamang?"

The witness is considered to have taken the oath or affirmation when he or she makes the
statement or replies with, "I do," or "Opo," to the court officer (i.e., the clerk of cour or the
legal researcher) administering the oath or affirmation. The oath or affirmation, as well
as the examination of the witness that follows it, will all be recorded by the court
stenographer and be made available as the Transcript of Stenographic Notes or the TSN.
If the witness makes willfully false statements in his or her testimony, the witness may be
prosecuted for perjury under Articles 180 to 183 of the Revised Penal Code.

Revised Rules on Evidence, Rule 132 (A), Section 4. Order in the examination of
an individual witness. — The order in which the individual witness may be examined is as
follows:

a. Direct examination by the proponent;

b.Cross-examination by the opponent;
c. Re-direct examination by the proponent; and
d. Re-cross examination by the opponent.

Revised Rules on Evidence, Rule 132 (A), Section 5. Direct examination. — Direct
examination is the examination-in-chief of a witness by the party presenting him or her
on the facts relevant to the issue.
Revised Rules on Evidence, Rule 132 (A), Section 6. Cross-examination; its
purpose and extent. — Upon the termination of the direct examination, the witness may
be cross-examined by the adverse party on any relevant matter, with sufficient fullness
and freedom to test his or her accuracy and truthfulness and freedom from interest or
bias, or the reverse, and to elicit all important facts bearing upon the issue.

Revised Rules on Evidence, Rule 132 (A), Section 7. Re-direct examination; its
purpose and extent.- After the cross-examination of the witness has been concluded, he
or she may be re-examined by the party calling him or her, to explain or supplement his
or her answers given during the cross-examination. On re-direct examination, questions
on matters not dealt with during the cross-examination, may be allowed by the court in
its discretion.

Revised Rules on Evidence, Rule 132 (A), Section 8. Re-cross examination. -

Upon the conclusion. of the re-direct examination, the adverse party may re-cross-
examine the witness on matters stated in his or her re-direct examination, and also on
such other matters as may be allowed by the court in its discretion.

Revised Rules on Evidence, Rule 132 (A), Section 9. Recalling witness. - After the
examination of a witness by both sides has been concluded, the witness cannot be recalled
without leave of the court. The court will grant or withhold leave in its discretion, as the
interests of justice may require.

Examination of Witnesses

During the examination of a witness, the opposing parties are given the opportunity to
ask witnesses their questions that prove the allegations of the party. The opposing parties
alternate in asking the witnesses, and they are given two rounds of questioning, with the
party presenting the witnesses going first in both rounds.

Round Examination Who Asks Questions

1 Direct Presenting party

Cross Opposing party
2 Re-direct Presenting party
Re-cross Opposing party

The examination of witnesses conducted by the party presenting the evidence-in-chief is

called direct examination. In criminal cases, it is the prosecution that is typically given
the first opportunity to present a witness (unless the court orders a reverse trial, where
the defense presents evidence first). This means that the prosecution goes first in asking
its witness questions to establish the allegations in the Information. When the
prosecution propounds questions to its witness, the prosecution is conducting the direct
examination of its witness.

As a matter of due process, the opposing party is given the opportunity to question the
presenting party's witness. This questioning by the opposing party is called the cross-
examination. In criminal cases, after the prosecution has completed the direct
examination, the defense will then be given the opportunity to do a cross-examination.
During cross-examination, the defense can ask the witness questions to check if the
witness is qualified to be a witness, has personal knowledge of the allegations he or she
has testified about, and is saying the truth. For example, the defense may ask an
eyewitness about his or her distance from the crime scene or the conditions at the crime
scene to raise doubts about the truth of the testimony of the witness.

Cross-examination, however, is not mandatory upon the opposing party. Otherwise put,
the opposing party may choose not to cross-examine the witness. If the defense in a
criminal case chooses not to cross-examine a witness, counsel will tell the court, "No
cross, your Honor."

If upon cross-examination, the witness testifies about something that the presenting party
feels the need to clarify, the presenting party can take the opportunity to do a re-direct
examination after the cross-examination is concluded. If the presenting party chooses to
do away with a re-direct examination, then the examination of the witness is completed.

On the other hand, if the presenting party conducts a re-direct examination, the opposing
party will also be given the opportunity to conduct a re-cross examination. If the opposing
party does not conduct a re-cross examination, the examination of the witness is
completed. Otherwise, the examination of the witness is completed after the re-cross
examination is finished.

After the examination of a witness is completed, can the witness still be called back to the
witness stand? The answer is, it depends. To recall a witness, a party must ask for
permission from the court (leave of court). If the court finds that examining the witness
again will serve the interests of justice, then the court will grant the leave and allow the
witness to be recalled for questioning. If there are no matters that can be taken up during
the witness's testimony that can possibly change the judgment of the court, then the court
will most likely deny the application for leave, and the witness cannot be recalled for
questioning.

Revised Rules on Evidence, Rule 132 (A), Section 10. Leading and misleading
questions. - A question which suggests to the witness the answer which the examining
party desires is a leading question. It is not allowed, except:

a. On cross-examination;
b.On preliminary matters;
c. When there is difficulty in getting direct and intelligible answers from a witness who
is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute;
d. Of an unwilling or hostile witness; or
e. Of a witness who is an adverse party or an officer, director, or managing agent of a
public or private corporation, or of a partnership or association which is an adverse
party.
A misleading question is one which assumes as true a fact not yet testified to by the
witness, or contrary to that which he has previously stated. It is not allowed.

Leading and Misleading Questions

During direct or re-direct examination, the presenting party can only ask neutral
questions or questions that do not suggest the desired answer to the witness. Some neutral
questions are, "Where were you on the night of 31 December 2019?" and "How do you
know the accused?" These questions do not suggest to the witness what answer the
presenting party wants to prove their case.

During cross-examination or re-cross examination, the Rules recognize that the witness
may be adverse to the opposing party or even behave with hostility. To counteract this,
the Rules allow the opposing party to ask leading questions. Leading questions are
questions that lead to or suggest the desired answer to the witness. Otherwise put, the
answer that the opposing party wants is already in the question itself. Usually, a leading
question will require a yes or no answer. For instance, to establish the ownership of her
bank account, the prosecution may ask the accused in an Estafa case, "Do you own the
Agricultural Bank account with account number 313100204041, and account name Alexa
Estregan?" The question already provides the name of the bank, the account number, and
the account name, and all the witness has to do is to affirm or deny her ownership by
answering yes or no, respectively.
Following the same consideration, leading questions are also allowed when conducting
an examination upon an unwilling or hostile witness, or an adverse party or an officer,
director, or managing agent of a public or private corporation or of a partnership or
association, which is an adverse party. For efficiency, leading questions are also allowed
when establishing preliminary matters, or when the witness who is ignorant, of a child of
tender years, or is of feeble mind, or a deaf-mute. In these instances, leading questions
may be asked even during direct or re-direct examination.

Judicial Affidavit Rule

The Judicial Affidavit Rule (JAR) took effect on 1 January 2013. A normal court
proceeding will take around three to five or even more years to be fully decided. By
requiring the submission of written affidavits of witnesses through the JAR, the time for
concluding a court proceeding will be shortened. The JAR thus seeks to decongest the
ever-increasing caseload in the country, brought about by the high number of cases filed
each day and the lengthy procedures observed. The JAR also seeks to address any lost
translation in interpreting the testimony of a witness, if the testimony was translated from
a local language into English.

Definition

Legal Basis

Judicial Affidavit Rule, Section 2. Submission of Judicial Affidavits and Exhibits in

lieu of direct testimonies. — (a) The parties shall file with the court and serve on the
adverse party, personally or by licensed courier service, not later than five days before
pre-trial or preliminary conference or the scheduled hearing with respect to motions and
incidents, the following:

1. The judicial affidavits of their witnesses, which shall take the place of such witnesses'
direct testimonies; and
2. XXX.

Judicial Affidavit Rule, Section 3. Contents of judicial affidavit. — A judicial

affidavit shall be prepared in the language known to the witness and, if not in English or
Filipino, accompanied by a translation in English or Filipino, and shall contain the
following:

(a) XXX;
(d) Questions asked of the witness and his corresponding answers, consecutively
numbered, that:
1. Show the circumstances under which the witness acquired the facts upon which he
testifies;
2. Elicit from him those facts which are relevant to the issues that the case presents;
and
3. Identify the attached documentary and object evidence and establish their
authenticity in accordance with the Rules of Court;
(e) XXX.

Judicial Affidavit Rule, Section 4. Sworn attestation of the lawyer. — (a) The judicial
affidavit shall contain a sworn attestation at the end, executed by the lawyer who
conducted or supervised the examination of the witness, to the effect that:

(1) He faithfully recorded or caused to be recorded the questions he asked and the
corresponding answers that the witness gave; and
 (2) Neither he nor any other person then present or assisting him coached the witness
regarding the latter's answers.

(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including
disbarment.

A judicial affidavit is a statement of a witness given under oath, intended to take the place
of their testimony in court given during direct examination. Otherwise said, it is the
question-and-answer exchange of the counsel and the witness in written form offered as
evidence for the party's case. In their judicial affidavits, witnesses answer questions
relating to how they came to know of the facts that they are testifying upon, the facts that
are material to the issues of the case, and the identification and authentication of
documentary and object evidence.
As for object or documentary evidence, if any of these are attached to the judicial affidavit,
these shall be marked and later on presented in court for verification and comparison.

Scope and Application to Criminal Cases

The JAR applies to first-level courts (MeTC, MTCC, MTC), Regional Trial Courts, the
Sandiganbayan, the Court of Tax Appeals, and other appellate courts. The JAR also
applies to investigating officers authorized to receive evidence, including police
investigator.

Police investigators, however, must conduct the examination of the witness under the
supervision of a lawyer, who also administers the oath to both the witness-affiant and the
police investigator.

For criminal cases, the submission of judicial affidavits is mandatory where: (1) the
maximum of the imposable penalty does not exceed six years; and (2) irrespective of the
penalty, the accused agrees to use judicial affidavits in lieu of direct testimonies. The JAR,
irrespective of the penalty, also applies to the civil aspect of the criminal case.

(Note: The JAR does not apply to family courts where children witnesses are not required
to submit a judicial affidavit and to summary procedures, the rules on which already
provide for the requirement of affidavits.)

The complainant or the public prosecutor submits the judicial affidavits of the
prosecution's witnesses, together with marked object or documentary evidence. On the
other hand, after the defense has received the judicial affidavits of the prosecution, the
accused can choose whether they would like to submit judicial affidavits of themselves
and their witnesses for their defense. Consistent with the purpose of JAR, the judicial
affidavits submitted by the prosecution and the defense shall serve as the direct
testimonies of the parties and their witnesses when they appear for their examination.

Legal Basis

Judicial Affidavit Rule, Section 1. Scope. — (a) This Rule shall apply to all actions,
proceedings, and incidents requiring the reception of evidence before:

1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, the Municipal Circuit Trial Courts, and the Sharia Circuit Courts but
shall not apply to small claims cases under A.M. 08-8-7-SC;
2.The Regional Trial Courts and the Sharia District Courts;
3.The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the Sharia
Appellate Courts;
4. The investigating officers and bodies authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the Philippine (IBP); and
 5. The special courts and quasi-judicial bodies, whose rules of procedure are subject to
disapproval of the Supreme Court, insofar as their existing rules of procedure
contravene the provisions of this Rule.
(b) XXX.

Judicial Affidavit Rule, Section 4. Sworn attestation of the lawyer. — (a) The judicial
affidavit shall contain a sworn attestation at the end, executed by the lawyer who
conducted or supervised the examination of the witness, to the effect that:

1. He faithfully recorded or caused to be recorded the questions he asked and the

corresponding answers that the witness gave; and
2. Neither he nor any other person then present or assisting him coached the witness
regarding the latter's answers.
(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including
disbarment.

Judicial Affidavit Rule, Section 9. Application of rule to criminal actions. —

(a) This rule shall apply to all criminal actions:

1. Where the maximum of the imposable penalty does not exceed six years;
2.Where the accused agrees to the use of judicial affidavits, irrespective of the penalty
involved; or
3.With respect to the civil aspect of the actions, whatever the penalties involved are.

(b) The prosecution shall submit the judicial affidavits of its witnesses not later than five
days before the pre-trial, serving copies if the same upon the accused. The complainant
or public prosecutor shall attach to the affidavits such documentary or object evidence as
he may have, marking them as Exhibits A, B, C, and so on. No further judicial affidavit,
documentary, or object evidence shall be admitted at the trial.

(c) If the accused desires to be heard on his defense after receipt of the judicial affidavits
of the prosecution, he shall have the option to submit his judicial affidavit as well as those
of his witnesses to the court within ten days from receipt of such affidavits and serve a
copy of each on the public and private prosecutor, including his documentary and object
evidence previously marked as Exhibits 1, 2, 3, and so on. These affidavits shall serve as
direct testimonies of the accused and his witnesses when they appear before the court to
testify.

Failure to Submit Judicial Affidavit

The 2019 amendments to the Revised Rules of Civil Procedure impliedly amended the
JAR via Rule 7, Section 6. Under this section, the attachment of the witnesses' judicial
affidavits to the pleadings is mandatory. If the witnesses judicial affidavits are not
attached to the pleadings, then the witnesses will not be allowed to testify in court.

Additional witnesses whose judicial affidavits were not attached to the pleadings will only
be allowed to testify if the court allows the subsequent admission of their judicial
affidavits. The belated submission of a witness' judicial affidavit will only be allowed once,
provided there is a meritorious reason, and the fine between P1,000 and P5,000 set by
the court is paid. The presentation of the testimonies of additional witnesses may be
reserved by counsel during pre-trial.

If judicial affidavits are not submitted, no meritorious reason for the admission of
additional witnesses is raised, or the fine is not paid, then the testimony of the party or
witness is deemed waived. In criminal cases, this means that the failure of the accused to
submit their judicial affidavit will preclude the accused from giving their testimony in
court. It would be as if the accused availed of their right to remain silent.
If the parties submit judicial affidavits, but these do not comply with the requirements set
in Sections 3 and 4 of the JAR, the court will treat these judicial affidavits as not
submitted.

Similarly, however, the court will allow the subsequent submission of replacement
affidavits that fully comply with the requirements in Sections 3 and 4 of the JAR, provided
that a valid reason for the delay is raised, the admission of the replacement affidavits
would not unduly prejudice the opposing party, the fine of not less than P1,000 nor more
than P5,000 set by the court is paid by the party making the submission.

Legal Basis

Revised Rules of Civil Procedure, Rule 7, Section 6. Contents. — Every pleading

stating a party's claims or defenses shall, in addition to those mandated by Section 2, Rule
7, state the following:

(a) XXX;

(b) Summary of the witnesses' intended testimonies, provided that the judicial affidavits
of said witnesses shall be attached to the pleading and form an integral part thereof. Only
witnesses whose judicial affidavits are attached to the pleading shall be presented by the
parties during trial. Except if a party presents meritorious reasons as basis for the
admission of additional witnesses, no other witness or affidavit shall be heard or admitted
by the court; and
(c) XXX.

Judicial Affidavit Rule, Section 10. Effect of non-compliance with the Judicial
Affidavit Rule. — (a) A party who fails to submit the required judicial affidavits and
exhibits on time shall be deemed to same provided the delay is for a valid reason, would
not unduly prejudice the opposing party, and the defaulting party pays a fine of not less
than P1,000.00 nor more than P5,000.00 at the discretion of the court.
(b) XXX; and
(c) The court shall not admit as evidence judicial affidavits that do not conform to the
content requirements of Section 3 and the attestation requirement of Section 4 above. The
court may, however, allow only once the subsequent submission of the compliant
replacement affidavits before the hearing or trial provided the delay is for a valid reason
and would not unduly prejudice the opposing party and provided further, that public or
private counsel responsible for their preparation and submission pays a fine of not less
than P1,000.00 nor more than P5,000.00, at the discretion of the court.

Judicial Affidavit Rule, Section 3. Contents of judicial affidavit. - A judicial

affidavit shall be prepared in the language known to the witness and, if not in English or
Filipino, accompanied by a translation in English or Filipino, and shall contain the
following:

(a)The name, age, residence or business address, and occupation of the witness;
(b)The name and address of the lawyer who conducts or supervises the examination of
the witness and the place where the examination is being held;
(c)A statement that the witness is answering the questions asked of him, fully conscious
that he does so under oath, and that he may face criminal liability for false testimony or
perjury;

(d) Questions asked of the witness and his corresponding answers, consecutively
numbered, that:

1. Show the circumstances under which the witness acquired the facts upon which he
testifies;
 2. Elicit from him those facts which are relevant to the issues that the case presents;
and
3. Identify the attached documentary and object evidence and establish their
authenticity in accordance with the Rules of Court;

(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who administers the oath or an officer
who is authorized by law to administer the same.

Judicial Affidavit Rule, Section 4. Sworn attestation of the lawyer. — (a) The
judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who
conducted or supervised the examination of the witness, to the effect that:

(1) He faithfully recorded or caused to be recorded the questions he asked and the
corresponding answers that the witness gave; and
Neither he nor any other person then present or assisting him coached the witness
regarding the latter's answers.
(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including
disbarment.

Failure to Appear

Legal Basis

Judicial Affidavit Rule, Section 10. Effect of non-compliance with the Judicial Affidavit
Rule. — (a)XXX;
(b) The court shall not consider the affidavit of any witness who fails to appear at the
scheduled hearing of the case as required. XXX.

If the judicial affidavit of the witness-affiant has been submitted, but the witness-affiant
fails to appear at the scheduled hearing, the court will still not consider the witness-
affiant's judicial affidavit. Because the judicial affidavit only replaces the witness-affiant's
direct examination, there remains a need for the witness-affiant to appear and to submit
themselves to cross-examination by the opposing party. The appearance of the witness in
court will allow the opposing party to challenge the statements of the witness-affiant given
in the judicial affidavit.

GROUP 4: OBJECT EVIDENCE AND DNA EVIDENCE

Object Evidence

Weight of Object Evidence

Physical or object evidence is evidence of the highest order. It speaks more eloquently
than a hundred witnesses.

Physical evidence is a mute but eloquent manifestation of truth, and it ranks high in our
hierarchy of trustworthy evidence. In criminal cases such as murder or rape where the
accused stands to lose his liberty if found guilty, [the Supreme Court] has, in many
occasions relied principally upon physical evidence in ascertaining the truth...

[W|here the physical evidence on record ran counter to the testimonial evidence of the
prosecution witnesses, we ruled that the physical evidence should prevail.

Object or physical evidence enjoys the highest ranking in the hierarchy of trustworthy
evidence because they demonstrate the facts they are related to, independent of the
interests of the parties to the case. This demonstration can be examined first-hand by the
court and thus can be very persuasive. In a rape case, DNA evidence of the accused's
semen collected from the victim's genitals demonstrates to the courts the high likelihood
or even certainty of intercourse between the two and can be deemed more reliable than a
witness's testimony.

Because object evidence is mute and its collection does not require the expression of
human intelligence, its admissibility cannot be opposed based on the right against self.
incrimination. The right against self-incrimination guaranteed under the Constitution
only protects against compulsions upon the accused to provide testimonial evidence of
guilt. In other words, this right covers incriminating statements but excludes object
evidence. Thus, the courts may order the collection of samples from the accused, such as
fingerprints and saliva. Fingerprints, saliva, and other biological specimen are examples
of object evidence.

Categories of Object Evidence

Object evidence is offered verbally after the testimony of witnesses. This is because
witnesses must first authenticate the object before it is offered as evidence to the court.
For purposes of authentication of an object or for laying the foundation for the exhibit,
object evidence may be classified into the following:

1. Unique objects — objects that have readily identifiable marks;

2. Objects made unique — objects that are made readily identifiable; and
3. Non-unique objects — objects with no identifying marks and cannot be marked.

In a case for carnapping, the identification of the stolen vehicle is critical to prove the
offense. The motor and chassis, which have readily identifiable marks (i.e., the motor and
chassis numbers), must be presented in court to identify the vehicle. The motor and
chassis numbers of the vehicle only appear on the particular motor and chassis of the
stolen vehicle, and they are what make the stolen vehicle a unique object.

In a case for drug trafficking, the seized packets of shabu, by themselves, are not unique.
Shabu in one drug case can look identical or similar to the shabu in another drug case.
However, once the packets of shabu are seized and placed in a container with markings
like the case number, the date and place when they were seized, and the persons they were
seized from, the substances are made readily identifiable with the distinguishing marks.
Marked substances are therefore objects made unique.

Non-unique objects are objects that are generic and have no distinguishing marks and
features. For instance, in a murder case, the murder weapons could be a commercially
manufactured kitchen knife or an icepick with a common design. In their unaltered states,
there would be no way to distinguish the murder weapons from another kitchen knife or
icepick from the same manufacturer.

Specific Examples of Object Evidence

Paraffin Cast

When a person discharges a firearm, the explosive action scatters particles from the
firearm in the air, and these particles may attach themselves to nearby objects. Paraffin
or dermal nitrate test determines the presence of gunshot residue on the hands of an
accused who is alleged to have discharged a firearm. Paraffin wax is applied to the back
of the accused's hands, and the cooled wax is peeled off. The cooled wax is what is called
the"paraffin cast." A chemical reagent is then applied to the paraffin cast. Parts of the cast
where there are nitrate or nitrite from the cartridge discharge turn blue.

Courts and scientific experts do not place great reliance upon paraffin tests. Although
paraffin tests tell us whether there are nitrates or nitrites on the hand, they do not explain
where the nitrates or nitrates came from. Nitrates or nitrites, for instance, are also used
in fertilizers, and the accused may have simply been planting in the backyard. The
presence of nitrates should be taken only as an indication of a possibility or even of a
probability but not of infallibility that a person has fired a gun since nitrates are also
admittedly found in substances other than gunpowder.

In the same vein, paraffin tests do not explain the absence of nitrates or nitrites. In the
inverse situation where gunpowder residue is not detected in the accused's hands, the
paraffin test results do not automatically absolve the accused for any liability. The absence
of nitrates or nitrites in the accused's hands despite discharging a firearm maybe caused
by the following: wearing of gloves, perspiration of the hands, wind direction, wind
velocity, humidity, climate conditions, the length of the barrel of the firearm, or the open
or closed trigger guard of the firearm.

Hence, the results of paraffin tests are hardly conclusive and are at best corroborative
evidence.

Fingerprints

Good police work necessitates checking the crime scene for all telltale signs left by the
perpetrators. These signs include the fingerprints of the perpetrators. For a very long
time, law enforcers and courts used fingerprint analysis as trustworthy evidence because
they are unique to all persons, even to identical twins who share the same DNA.

However, the reliability of fingerprints as evidence has faced challenges. In particular, the
courts do not automatically acquit the accused when a negative finding for fingerprints
(i.e., the crime scene is clear for any fingerprint of the accused) is presented as conclusive
evidence that the accused was nowhere near the crime scene. The absence of latent
fingerprints of the accused on the crime scene does not immediately eliminate the
possibility that the accused could have been at the crime scene. There could be other
logical explanations for the absence of identifiable latent prints, like the accused wearing
gloves, or the wiping off or removal of the prints.

Marked Money

In entrapment operations, law enforcers may use marked money or boodle money with
fluorescent powder. The hands of the accused are then tested for the presence of the
fluorescent powder to prove that they received the marked money.

Although the application of fluorescent powder is commonly done, it is not required

under any rule. In fact, the failure of the police operatives to use fluorescent powder on
the boodle money is not an indication that the entrapment operation did not take place.

When marked money is to be used as object evidence, it must be presented in court to be

addressed to the senses of the court. However, when the existence of the marked money
is not disputed by the parties, and the parties agree that from the comparison of the
marked money to photocopies of it, the latter appear to be faithful reproductions of the
former, then the photocopies may be presented.

Polygraph Test

Despite the frequent depiction in movies of suspects undergoing lie detector tests during
an investigation, results of these tests are frequently rejected by the courts as evidence of
guilt. Polygraph testing has not yet attained scientific acceptance as a reliable and
accurate means of ascertaining truth or deception.

Other Examples of Objects as Evidence

 1. Gasoline or any fire instrument used in setting fire for the crime of Arson
2.Scalpels, abortive pills, medical equipment, and facilities used for the crime of
abortion
3.Pistol used in shooting the victim and knife or any pointed object used in stabbing
for the crime of murder, parricide, or homicide
4. In theft or robbery, fencing, carnapping, or piracy, the picklocks, false keys, and
similar tools and the stolen object if recovered
5. The subject dangerous or illegal drug recovered for violation of Republic Act No.
9165
6. The cellular phone, plastic bag, plastic sachet, tooter, aluminum foil strips,
disposable lighters, weighing scales, and other drug paraphernalia under Sec. 12 of
Republic Act No. 9165
7. The playing cards and other gambling paraphernalia in violation of Presidential
Decree No. 1602
8. Any physical equipment used in the crime of falsification of public documents
9. The clothing used by the offender in committing the crime
10. The bloodstains found on the body of the victim
11. Or any object which corroborates or illustrates the victim's testimony like healed
lacerations to corroborate the testimony of a rape victim
12. A person's appearance, if relevant, is admissible as object evidence
13. Explosives and explosive devices such as ammonium nitrate or any object used for
the manufacture of explosives under Republic Act No. 8294
14. The desktop computer and the internet broadband connector used in human
trafficking

DNA Evidence

What is DNA?

Legal Basis

Rule on DNA Evidence, Section 3. Definition of Terms. - For purposes of this

Rule, the following terms shall be defined as follows:

a."Biological sample" means any organic material originating from a person's body, even
if found in inanimate objects, that is susceptible to DNA testing. This includes blood,
saliva and other body fluids, tissues, hairs and bones;

b."DNA" means deoxyribonucleic acid, which is the chain of molecules found in every
nucleated cell of the body. The totality of an individual's DNA is unique for the individual,
except identical twins;
c."DNA evidence" constitutes the totality of the DNA profiles, results and other genetic
information directly generated from DNA testing of biological samples;

d. "DNA profile" means genetic information derived from DNA testing of a biological
sample obtained from a person, which biological sample is clearly identifiable as
originating from that person;

e. "DNA testing" means verified and credible scientific methods which include the
extraction of DNA from biological samples, the generation of DNA profiles and the
comparison of the information obtained from the DNA testing of biological samples for
the purpose of determining, with reasonable certainty, whether or not the DNA obtained
from two or more distinct biological samples originates from the same person (direct
identification) or if the biological samples originate from related persons (kinship
analysis); and
f. "Probability of Parentage" means the numerical estimate for the likelihood of parentage
of a putative parent compared with the probability of a random match of two unrelated
individuals in a given population.

"Deoxyribonucleic Acid (DNA) is the fundamental building block of a person's entire

genetic make-up. [It] is found in all human cells and is the same in every cell of the same
person.* The US National Human Genome Research Institute explains the structure of
the DNA, thus:

Double helix is the description of the structure of a DNA molecule. A DNA molecule
consists of two strands that wind around each other like a twisted ladder. Each strand
has a backbone made of alternating groups of sugar (deoxyribose) and phosphate
groups. Attached to each sugar is one of four bases: adenine (A), cytosine (C), guanine
(G), or thymine (T). The two strands are held together by bonds between the bases,
adenine forming a base pair with thymine, and cytosine forming a base pair with
guanine.

Imagine the DNA to be a twisting ladder, with the steps of the ladder carrying codes. These
codes are the genes that contain information on the physical and personality traits of any
one human being. The DNA profile of a person is unique, except when the person has an
identical twin. Identical twins share the same DNA profile, which is why they look
physically the same and may share similar personality attributes.

The process of introducing DNA evidence begins with the collection of biological samples.
Blood, saliva, hair, fingernails, and skin are some biological samples that may be collected
for DNA testing. These evidence and reference samples are collected from crime scenes,
accused persons, and parties in a civil case. In a criminal case, the blood collected from
the scene is the evidence sample, and blood collected from the accused is the reference
sample. In a civil case for paternity, the saliva collected from the party claiming to be the
child is the evidence sample, and the saliva collected from the person claimed to be the
father is the reference sample.

The samples are then tested. Testing includes the creation of the DNA profiles from the
biological samples and the comparison of the DNA profiles of the evidence and reference
samples. DNA testing is made to "ascertain whether an association exists between the
evidence sample and the reference sample."

If the allegation is that the sample originates from the same person, then the comparison
is for the purpose of direct identification. This is the case if the goal is to verify the identity
of the accused. If the allegation is that the sample originates from related persons, then
the comparison is for the purpose of kinship analysis. Courts may take advantage of the
technology for kinship analysis in paternity and filiation cases.

Procedure on Using DNA Evidence

Legal Basis

Rule on DNA Evidence, Section 4. Application for DNA Testing Order. — The
appropriate court may, at any time, either motu proprio or on application of any person
who has a legal interest in the matter in litigation, order a DNA testing. Such order shall
issue after due hearing and notice to the parties upon a showing of the following:

a. A biological sample exists that is relevant to the case;

b. The biological sample: (i) was not previously subjected to the type of DNA testing
now requested; or (ii) was previously subjected to DNA testing, but the results may
require confirmation for good reasons;
c. The DNA testing uses a scientifically valid technique;
 d. The DNA testing has the scientific potential to produce new information that is
relevant to the proper resolution of the case; and
e. The existence of other factors, if any, which the court may consider as potentially
affecting the accuracy or integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order, at the
behest of any party, including law enforcement agencies, before a suit or proceeding is
commenced.

Rule on DNA Evidence, Section 5. DNA Testing Order. — If the court finds that
the requirements in Section 4 hereof have been complied with, the court shall:

(a) Order, where appropriate, that biological samples be taken from any person or
crime scene evidence;
(b) Impose reasonable conditions on DNA testing designed to protect the integrity of
the biological sample, the testing process and the reliability of the test results,
including the condition that the DNA test results shall be simultaneously disclosed
to parties involved in the case; and
(c) If the biological sample taken is of such an amount that prevents the conduct of
confirmatory testing by the other or the adverse party and where additional
biological samples of the same kind can no longer be obtained, issue an order
requiring all parties to the case or proceedings to witness the DNA testing to be
conducted.

An order granting the DNA testing shall be immediately executory and shall not be
appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the
implementation thereof, unless a higher court issues an injunctive order. The grant of a
DNA testing application shall not be construed as an automatic admission into evidence
of any component of the DNA evidence that may be obtained as a result thereof.

Rule on DNA Evidence, Section 12. Preservation of DNA Evidence. - The trial
court shall preserve the DNA evidence in its totality, including all biological samples, DNA
profiles and results or other genetic information obtained from DNA testing. For this
purpose, the court may order the appropriate government agency to preserve the DNA
evidence as follows:

(a) In criminal cases:

i. for not less than the period of time that any person is under trial for an offense; or
ii. in case the accused is serving sentence, until such time as the accused has served
his sentence; and
(b) In all other cases, until such time as the decision in the case where the DNA
evidence was introduced has become final and executory.

The court may allow the physical destruction of a biological sample before the expiration
of the periods set forth above, provided that:

(a) A court order to that effect has been secured; or

(b) The person from whom the DNA sample was obtained has consented in writing to
the disposal of the DNA evidence.

Application for DNA Testing Order

DNA testing may be done whether or not there is a pending case and in certain
circumstances, even after the trial of the case has already been concluded. Thus, law
enforcement authorities, in instances where there is no suit or proceeding, DNA testing
may be done without a prior court order. If there is a suit or proceeding, an application
for a DNA testing order may be filed by an interested party, or the court may issue the
DNA testing order on its own initiative.

The court may issue a DNA testing order when after due notice and hearing to the
(a) A biological sample exists that is relevant to the case;
(b) The biological sample:
i. was not previously subjected to the type of DNA testing now requested;
or
ii. ii. was previously subjected to DNA testing, but the results may require
confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information that is
relevant to the proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as potentially
affecting the accuracy or integrity of the DNA testing.

In a case for Parricide, the accused is alleged to be the estranged child of the deceased.
The court may order DNA testing if it is satisfied that the bloodstains from the clothes of
the deceased when he was shot, and the nasal swabs from the accused (1) exist or can be
acquired, (2) have not been previously subjected to DNA testing, (3) can be subjected to
DNA typing using the Short Tandem Repeat (STR) analysis, and (4) have the scientific
potential to produce the new information on the deceased's paternity and that there are
no other factors that may affect the accuracy or integrity of the DNA testing.

The DNA testing order directs the collection of biological samples either from persons
and crime scenes. It can also specify conditions of the testing process to protect the
integrity of the evidence, such as the presence of the parties or their representatives
during sample collection and disclosure of the results. In instances where the biological
sample available is only sufficient for one round of DNA testing (e.g., five strands of hair
from the deceased who was immediately cremated), the court may also order the parties
to be present during the testing itself, to compensate for the impossibility of confirmatory
testing.

The DNA testing order is immediately executory unless a higher court issues an injunctive
order like a temporary restraining order or preliminary injunction. The injunctive order
will stay or suspend the execution of the DNA testing order.

The courts have the duty to preserve all DNA evidence (i.e., DNA profiles, results, and
other genetic information). In criminal cases, the courts may order the appropriate
government agency to preserve the DNA evidence during the course of the trial or until
the accused serves the sentence in full.

Post-conviction DNA Testing

Rule on DNA Evidence, Section 6. Post-conviction DNA Testing - Post-conviction DNA

testing may be available, without need of prior court order, to the prosecution or any
person convicted by final and executory judgment provided that (a) a biological sample
exists, (b) such sample is relevant to the case, and (e) the testing would probably result in
the reversal or modification of the judgment of conviction.

Rule on DNA Evidence, Section. 10. Post-conviction DNA Testing. Remedy if the
Results Are Favorable to the Convict. — The convict or the prosecution may file a petition
for a writ of habeas corpus in the court of origin if the results of the post-conviction DNA
testing are favorable to the convict. In case the court, after due hearing, finds the petition
to be meritorious, it shall reverse or modify the judgment of conviction and order the
release of the convict, unless continued detention is justified for a lawful cause.
A similar petition may be filed either in the Court of Appeals or the Supreme Court, or
with any member of said courts, which may conduct a hearing thereon or remand the
petition to the court of origin and issue the appropriate orders.

The provisions for post-conviction DNA testing take into consideration the possibilities
that DNA testing technologies did not exist when the judgment became final, and that
DNA evidence may subsequently become available after the conviction.

If the accused has already been convicted, then there is no need to apply for a court order
to conduct a DNA test. The prosecution or any person convicted by a final and executory
judgment may avail of DNA testing if (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. For instance, an accused convicted of rape
may avail of DNA testing post-conviction if vaginal smears from the deceased victim were
collected within 72 hours from the time of the assault and have been preserved since
without contamination. The vaginal smears may contain the perpetrator's DNA from his
semen.

If the DNA profile of the perpetrator from the evidence sample does not match the DNA
profile from the reference sample of the person convicted, then the latter may use the
DNA, testing results as evidence.

If the results of the DNA testing are favorable to the person convicted, the person
convicted may file a petition for a writ of habeas corpus in the court of origin (i.e., the
respective trial court), the Court of Appeals, or the Supreme Court. The court, after a
hearing on the DNA evidence, may reverse the finding of guilt (i.e., acquit and release),
or modify the judgment (e.g., shorten the sentence based on mitigating circumstances).

Weight of DNA Evidence

Legal Basis

Rule on DNA Evidence, Section 7. Assessment of probative value of DNA evidence.

— In assessing the probative value of the DNA evidence presented, the court shall
consider the following:

(a) The chain of custody, including how the biological samples were collected, how they
were handled, and the possibility of contamination of the samples;

(b)The DNA testing methodology, including the procedure followed in analyzing the
samples, the advantages and disadvantages of the procedure, and compliance with the
scientifically valid standards in conducting the tests;

(c)The forensic DNA laboratory, including accreditation by any reputable standards-

setting institution and the qualification of the analyst who conducted the tests. If the
laboratory is not accredited, the relevant experience of the laboratory in forensic casework
and credibility shall be properly established; and

(d) The reliability of the testing result, as hereinafter provided.

The provisions of the Rules of Court concerning the appreciation of evidence shall apply
suppletorily.

Rule on DNA Evidence, Section 8. Reliability of DNA Testing Methodology. — In

evaluating whether the DNA testing methodology is reliable, the court shall consider the
following:
 (a) The falsifiability of the principles or methods used, that is, whether the theory or
technique can be and has been tested;
(b) The subjection to peer review and publication of the principles or methods;
(c) The general acceptance of the principles or methods by the relevant scientific
community;
(d) The existence and maintenance of standards and controls to ensure the correctness
of data generated;
(e) The existence of an appropriate reference population database; and
(f) The general degree of confidence attributed to mathematical calculations used in
comparing DNA profiles and the significance and limitation of statistical
calculations used in comparing DNA profiles.

Rule on DNA Evidence, Section 9. Evaluation of DNA Testing Results. — In

evaluating the results of DNA testing, the court shall consider the following:

(a) The evaluation of the weight of matching DNA evidence or the relevance of
mismatching DNA evidence;
(b) The results of the DNA testing in the light of the totality of the other evidence
presented in the case; and that
(c) DNA results that exclude the putative parent from paternity shall be conclusive proof
of non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results
of the DNA testing shall be considered as corroborative evidence. If the value of the
Probability of Paternity is 99.9% or higher, there shall be a disputable presumption of
paternity.

Courts will not automatically admit or be convinced by DNA testing results. Like other
evidence, courts will still have to examine the DNA evidence to ascertain its probative
value. In its assessment of the DNA evidence, the courts will need to consider these four
factors:

(1) Chain of custody - the collection of the samples, transmittal to the testing facility,
testing, storage, possible contamination
(2) DNA testing methodology - the testing methodology must be scientifically
recognized as a valid technique, meaning it has to be tested, reviewed, and
accepted by the scientific community, with known advantages and disadvantages,
and the use of appropriate standards and controls, references, and calculations
(3) Forensic DNA laboratory - accreditation or relevant experience and credibility of
the laboratory, as well as the qualification of the analyst who conducted the testing
(4) Reliability of the testing result - the degree of match or mismatch between the DNA
profiles from the evidence sample and the reference sample and how the DNA
evidence supports or contradicts the other evidence introduced in the case

The probative value of the DNA evidence is largely left to the discretion of the trial court.
The Rule on DNA Evidence, however, prescribes the probative value of DNA evidence
when it is introduced to settle the issue of paternity.

DNA Result: Probability of Paternity Probative Value

0% or excluded Conclusive proof of non-paternity
Less than 99.9% Corroborative evidence
99.9% or higher Disputable presumption of paternity

If the probability of paternity is 0%, then the courts can conclude that the putative father
is not the biological father of the child. If the probability of paternity is above 0% but less
than 99.9%, then the DNA result may be introduced as evidence to corroborate the other
pieces of evidence that the parties may have. If the probability of paternity is 99.9% or
higher, then there is a statistically sound basis for the presumption that the putative father
is the biological father. This disputable presumption shifts the burden of evidence on the
putative father to prove that he is not the biological father of the child. The putative father
may present the contradictory results of a confirmatory DNA test to overcome the
presumption of paternity.

GROUP 5: Evidence in Drugs Cases

Chain of Custody Rule

Legal Basis

Republic Act No. 9165, Section 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and /or
surrendered, for proper disposition in the following manner:

(1) xxx;
(2)Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/ paraphernalia and/or laboratory equipment, the same shall be submitted
to the PDEA Forensic Laboratory for a qualitative and quantitative examination;
(3)A certification of the forensic laboratory examination results, which shall be done by
the forensic laboratory examiner, shall be issued immediately upon the receipt of the
subject item/s: Provided, That when the volume of dangerous drugs, plant sources of
dangerous drugs, and controlled precursors and essential chemicals does not allow the
completion of testing within the time frame, a partial laboratory examination report shall
be provisionally issued stating therein the quantities of dangerous drugs still to be
examined by the forensic laboratory: Provided, however, That a final certification shall be
issued immediately upon completion of the said examination and certification;

XXX.

The chain of custody rule requires that the admission of an exhibit be preceded by
evidence to support a finding that the matter in question is what the proponent claims it
to be. It would include testimony about every link in the chain, from the moment the item
was picked up to the time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was received, where it was and
what happened to it while in the witnesses' possession, the condition in which it was
received, and the condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there had been no
change in the item's condition and no opportunity for someone not in the chain to have
possession of the same.

Section 21 of Republic Act No. 9165 (as amended by Republic Act No. 10640) provides for
the procedure in handling seized drugs by apprehending officers to establish the chain of
custody. Dangerous Drug Board (DDB) Regulation No. 1, series of 2002, in turn, provides
for the definition of "chain of custody," thus:

"For drug cases, chain of custody means the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of seizure/confiscation to receipt in
the forensic laboratory to safekeeping to presentation in court for destruction. Such
record of movements and custody of seized item shall include the identity and signature
of the person who held temporary custody of the seized item, the date and time when
such transfer of custody were made in the course of safekeeping and use in court as
evidence, and the final disposition; x x x."

To establish the chain of custody of the seized drugs, the following links should be
established to ensure the integrity of the seized drug item (chain of custody procedure):

1. The seizure and marking, if practicable, of the illegal drug recovered from the
accused by the apprehending officer;

2.The turnover of the illegal drug recovered seized by the apprehending officer to the
investigating officer;

3.The turnover by the investigating officer of the illegal drug to the forensic chemist
for laboratory examination;

4. The turnover and submission of the marked illegal drug seized from the forensic
chemist to the court."

Example:

On 18 June 2020, a confidential informant reported to PSS Freddie Boy that a certain
alias "Moises" is engaged in the illegal sale of drugs at Pineapple Street in Quezon City.
Thereafter, the Station Drug Enforcement Unit of the police station formed a buy-bust
team.

During the briefing, the agreed pre-arranged signal for the poseur-buyer will be to
"scratch his nape." PSSG Freddie Boy is the poseur buyer, while Police Corporal
Alexander Bring is the immediate backup officer. They also prepared the buy-bust money
taken from the operational fund. After the required pre-coordination reports with the
PDEA, validation of report, surveillance, and test-buy, the operatives indeed confirmed
that a certain alias MOISES is selling drugs. It was also discovered that the real name of
MOISES is JUAN DELA CRUZ. The following day, the confidential informant went back
and said that MOISES is ready to transact with him.

Upon reaching Pineapple Street, the informant and MOISES exchanged pleasantries, and
PSSG FREDDIE BOY was formally introduced as the buyer. PSSG FREDDIE BOY was
then wearing civilian clothes and pretends to be a drug addict. Upon exchange of the
money and the drug pulled out from the pocket of MOISES, PSSG FREDDIE BOY made
a pre-arranged signal, and MOISES was entrapped and arrested.

After an elected official from the barangay and the member of news media arrived,
PSSG FREDDIE BOY did as follows:

1. PSSG FREDDIE BOY marked the drug as BB-FB-JC 06-18-20 in the presence of the
two mandatory witnesses and at Pineapple street, the place of the arrest.
2. After the required inventory of seized items, PSSG FREDDIE BOY brought the
evidence recovered and MOISES to the police station for proper investigation.
3. Inside the police station, the investigator prepared the required documents,
particularly the chain of custody form. The seized drug was received or shown to
the investigator, and as proof of turnover, PSSG FREDDIE BOY and
INVESTIGATOR ITCHONG signed the chain of custody.
4. After the Investigator examined the drug, it was returned to PSSG FREDDIE BOY,
and then he, in turn, went to the Crime Laboratory to submit the seized drug for
qualitative examination.
 5. At the crime laboratory, PSSG FREDDIE BOY was approached by the forensic
chemist PLTCOL TOTI and received the seized drug. PLTCOL TOTI signed the
chain of custody form as proof of receipt.
6. After less than 24 hours, PLTCOL TOTI submitted to PSSG FREDDIE BOY the
chemistry report.

Illegal drugs must be marked after the seizure because the drugs themselves are non-
unique characteristics of illegal drugs, which are indistinct, not readily identifiable, and
easily open to tampering, alteration, or substitution, either by accident or otherwise. The
marking of the seized illegal drugs will make the seized drugs unique so that they may be
identifiable against all other evidence. The marking is comprised of the arresting officer's
initials and the date and time when the evidence was seized.

Example:

A seizing officer made a distinctive marking for each plastic sachet of shabu including
other pieces of evidence recovered from the arrested person. Other pieces of evidence
recovered which are not per se illegal, such as the mobile phone and purse, are also
marked.

The seizing officers are marking the illegal drugs and other pieces of evidence in the
presence of a media representative, an elected official (barangay kagawad), and the
person arrested (wearing a yellow shirt) at the place of the arrest, in compliance with
Section 21 of RA 9165. The officers are also preparing the required Inventory of Seized
Items.

When and where should the inventory, photographing and marking take
place

It must be made immediately after seizure and confiscation, at the place of apprehension.
It is only when the same is not practicable that it may be done as soon as the buy-bust
team reaches the nearest police station or the nearest office of the apprehending
officer/team. (People v. Fatallo y Alecarte, G.R. No. 218805, November 7, 2018)

Significance of the confiscated drug

It constitutes the very corpus delicti of the offense and the fact of its existence is vital to
sustain a judgment of conviction. It is essential that the identity and integrity of the seized
drugs be established with moral certainty.

The prosecution must prove, beyond reasonable doubt, that the substance seized from the
accused is exactly the same substance offered in court as proof of the crime. Each link to
the chain of custody must be accounted for. (People v. Fatallo y Alecarte, G.R. No. 218805,
November 7, 2018 )

Mandatory Witness Rule

Legal Basis

Republic Act No. 9165, Section 21. Custody and Disposition of Confiscated, Seized,
and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:
1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same
in the presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the media and
the Department of Justice (DOJ, and any elected public official who shall be required to
sign the copies of the inventory and be given a copy thereof;
XXX.

Republic Act No. 10640, Section 1. - Section 21 of Republic Act No. 9165, otherwise
known as the"Comprehensive Dangerous Drugs Act of 2002" is hereby amended to read
as follows:

"SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous
Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall
take charge and have custody of all dangerous drugs, plant sources of dangerous drugs,
controlled precursors and essential chemicals, as well as instruments/paraphernalia
and/or laboratory equipment so confiscated, seized and/or surrendered, for proper
disposition in the following manner:

"(1) The apprehending team having initial custody and control of the dangerous drugs,
controlled precursors and essential chemicals, instruments/paraphernalia and/or
laboratory equipment shall, immediately after seizure and confiscation, conduct a
physical inventory of the seized items and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, with an elected public official and a representative of the
National Prosecution Service or the media who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, That the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the
nearest police station or at the nearest office of the apprehending officer/team, whichever
is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of
these requirements under justifiable grounds, as long as the integrity and the evidentiary
value of the seized items are properly preserved by the apprehending officer/team, shall
not render void and invalid such seizures and custody over said items.

Before the amendment of Republic Act No. 9165, the law required the presence of three
mandatory witnesses during the inventory of the confiscated dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment: a representative from the
media, the Department of Justice representative, and any elected public official.

One amendment introduced by Republic Act No. 10640 is the requirement of only two
mandatory witnesses during the inventory of the confiscated evidence. Under the present
rule, only an elected official and a representative of the Department of Justice OR the
media needs to be present during the inventory of the confiscated evidence.

Non-compliance with the witness requirement may be permitted only if the prosecution
proves that the apprehending officers exerted genuine and sufficient efforts to secure
their presence. x x X The earnestness of these efforts must be examined on a case-to-case
basis x x X. Thus, mere statements of unavailability without actual serious attempts to
contact the required witnesses are unacceptable as justified grounds for non-compliance.

The chain of custody rule is substantive law

It is a matter of substantive law and it cannot be brushed aside as a simple procedural

technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects.
(People v. Fatallo y Alecarte, G.R. No. 218805, November 7, 2018)
Purpose of the Chain of Custody Rule

1. To avoid the evils of illegally planting drugs, switching or contaminating

2. Ensure integrity and identity of the drugs seized- the prohibited drug confiscated
or recovered from the suspect is the very same substance offered in court as
evidence
3. Effect of failure to comply – will not render drugs inadmissible, because the law
and rules do not provide that failure to comply with chain of custody rule will
render drugs inadmissible

Is the violation of the chain of custody rule fatal?

No, provided that the prosecution satisfactorily proves that: (a) there is justifiable ground
for non-compliance; and (b) the integrity and evidentiary value of the seized items are
properly preserved.

The prosecution should explain the reasons behind the procedural lapses. Without any
justifiable explanation, the evidence of the corpus delicti is unreliable, and the acquittal
of the accused should follow on the ground that his guilt has not been shown beyond
reasonable doubt. (People v. Fatallo y Alecarte, G.R. No. 218805, November 7, 2018 )

Read, discuss and present the case of PEOPLE OF THE PHILIPPINES vs ROGELIO
YAGAO y LLABAN, G.R. No. 216725, February 18, 2019.

Summarize the facts and the ruling of the court. Focus on the issue on the failure to
comply with the chain of custody rule.